Misappropriation — also called commercialization, usually involves people whose names, likenesses or other identifying characteristics were used without their permission. Virginia state law recognizes “misappropriation”
Roberson v. Rochester Folding Box Co., 1902 — (mentioned above); this case came before state laws against misappropriation
Charlie Chaplin v Amador, 1923 — Silent film star Charlie Chaplin successfully sued a lookalike named “Charlie Aplin ” in a 1923 case. The problem was the attempt at deception, said the court.
Polydoros v. Twentieth Century Fox Film Corp., 1997 — Michael Polydoros was a childhood friend of David Evans. When Evans wrote the movieThe Sandlot, Polydoros claimed that he was the fictional character Michael “Squints” Palledorous in the movie and sued for misappropriation of identity and invasion of privacy. (Further commentary by Rochelle Wilcox) The courts sided with Evans, noting: “It is generally understood that novels are written out of the background and experiences of the novelist. The characters portrayed are fictional, but very often they grow out of real persons the author has met or observed …
Frazier v. Boomsma, 2007 — Anti-war activist Dan Frazier used the names of 3,461 soldiers who had died in Iraq as the background of a t-shirt with “Bush Lied” in large type. Although some states prohibit the use of soldiers names for commercial purposes, a federal court held that this was protected political expression.
Schwarzenegger v. Ohio Discount Merchandise, 2004 — Although settled out of court, this case over a “bobbin” doll raises an interesting issue. When a celebrity becomes a politician, do efforts to control publicity infringe on the First Amendment?
Carson v. Here’s Johnny,1976 — Carson sued after a portable toilet manufacturer used his introductory slogan, “Here’s Johnny” to advertise his toilets.
Right of publicity
Everyone has a right of publicity to protect their names, images, and likenesses (NIL) from unfair commercial use. This even includes their wardrobes, singing styles or other identifying characteristics of celebrities. However, the law varies quite a bit from state to state.
Singers Tom Waits, Bette Middler and many others have sued when sound-alike songs were used without their permission. The use of look-alike actors can also be a problem, for example, in a case involving a Woody Allen look-alike used to advertise a video store.
The Middler v. Ford Motor Co. (9th Cir. 1988) involved singer Bette Midler. She refused to do an ad for Ford, and the ad agency hired one of her backup singers to sing one of Middler’s songs in her voice. Middler won the case. In another similar case, Vanna White v. Samsung Electronics of America, Inc., the electronics manufacturer had a blonde robot flipping cards on a game show. White said it was her likeness and won the suit.
Zacchini v. Scripps Howard Broadcasting 1977 — A TV station broadcast a “human cannonball’s” entire act, against his objections, and the US Supreme Court rejected the TV station’s newsworthyness defense. The court said the broadcast deprived him of the economic value of his performance. This ruling is similar to copyright rulings where partial excerpts for reviews might be permitted under fair use, but a complete reprinting or rebroadcasting of some material would be copyright infringement.
Unauthorized digital replicas of media present special challenges, as noted in the AI and Copyright section of this text.
Student athletes and NILs
College sports figures, as of 2021, have the right to make money to endorse products (through licensing of their NILs) in the same way that professional athletes do. Many colleges now use licensing agencies such as Student Athlete NIL to organize the sale of these endorsements.
In 2024, the NCAA agreed to further changes and to pay damages to athletes who lost out financially due to its previous rules. New rules took effect August 1, 2024, allowing athletes to pursue NIL opportunities without limitations.