What is Appropriation of Name or Likeness?
Another type of invasion of privacy shares many characteristics of defamation (for more information on defamation, click here). This makes sense because both torts involve a defendant who makes statements or carries out acts concerning a plaintiff wherein the defendant did so for its own purposes/benefit, commercially or otherwise. Defamation, however, goes a step further in requiring that the statement be false, whereas appropriation of name or likeness does not. While this may seem like an overly broad cause of action, defendants benefit from a number of powerful affirmative defenses.
Most importantly, use of a plaintiff's name, likeness, or identity is privileged under the First Amendment and not actionable when it is “made in the context of, and reasonably related to, a publication concerning a matter that is newsworthy or of legitimate public concern.” This privilege is known as the “public interest privilege.”
On the other hand, if the character of the publication is “primarily commercial,” the privilege will not apply. Social or political commentaries, lifestyle features, artistic and entertainment works, including parody and satire, may also be protected as long as they are not predominantly commercial. Notably, speech is not commercial simply because it is published by a profitmaking enterprise, such as a newspaper, magazine, or television station.
How do I prove Appropriation of Name or Likeness?
In order to recover for invasion of privacy by appropriation, a plaintiff must prove all of the following elements by a preponderance of the evidence:
- The defendant used the plaintiff's name, likeness, or identity;
- The use of the plaintiff's name, likeness, or identity was for the defendant's own purposes or benefit, commercially or otherwise;
- The plaintiff had damages/injuries/losses; and
- The defendant's use of the plaintiff's name, likeness, or identity was a cause of the plaintiff's damages/injuries/losses.
A particularly unique limitation observed in Colorado for this cause of action relates to recoverable damages. An individual whose name or likeness has been appropriated may recover “personal damages,” which include emotional injury, harm to reputation, and related financial losses. On the other hand, however, Colorado does not recognize damages based upon the commercial value of one's persona. In other jurisdictions, courts have recognized a “right of publicity” against one who appropriates, without consent, the plaintiff's name, likeness, or identity, under which commercial damages are recoverable if the plaintiff proves value in his or her identity. This right is not observed in Colorado.
Invasion of privacy: Appropriation of Name or Likeness is a nuanced and complex cause of action in Colorado. At Volpe Law, our attorneys are ready to help you with your potential claim/defense: give us a call at 720-441-3328 or complete a consultation request form for more information on how we can help!
 Joe Dickerson & Assocs., LLC v. Dittmar, 34 P.3d 995, 1003 (Colo. 2001).
 CJI § 28:4, Source and Authority ¶ 3 (citing 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 12:5 (5th ed. 2019)).
 Dittmar, 34 P.3d at 1004.
 CJI § 28:4.
 Dittmar, 34 P.3d at 1002.
 CJI § 28:4, Source and Authority ¶ 2 (citing Restatement (Third) of Unfair Competition § 46 (1995)).
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