California First-Year Law Students' Exam (Baby Bar) — MCTortsMedium
A professional photographer captured an image of a well-known activist participating in a public protest against a local policy. The photographer then sold the image to a national magazine, which published it alongside an article criticizing the activist's stance. The activist sued the photographer for appropriation of likeness. Is the activist likely to succeed?
- AYes, because the photographer used the activist's image for commercial gain without consent.
- BNo, because the image was taken in a public place during a newsworthy event.
- CYes, because the article criticized the activist, causing reputational harm.
- DNo, because the photographer did not explicitly endorse the article's viewpoint.
Show answer & explanationAnswer & explanation
Correct answer: B. No, because the image was taken in a public place during a newsworthy event.
The tort of appropriation of likeness typically does not apply to the use of a person's image in connection with a newsworthy event or matter of public interest, especially when taken in a public place. This falls under the 'newsworthy exception' to the right of publicity.
Why the other options are wrong
- A. While commercial gain is an element of appropriation, the newsworthy exception often overrides it for public figures in public places.
- C. Reputational harm is typically addressed by defamation, not appropriation of likeness.
- D. The photographer's endorsement is not the primary factor; the newsworthy context is.
Appropriation of Likeness (Newsworthy Exception)
The tort of appropriation of likeness (or right of publicity) protects against the unauthorized commercial use of a person's name or image, but generally includes an exception for newsworthy events or matters of public interest.
- Protects against commercial exploitation of identity.
- Requires unauthorized use of name/likeness for commercial benefit.
- Newsworthy exception: use in connection with news, public affairs, or matters of public interest is usually not actionable.
- Public figures often have a diminished expectation of privacy in public.
Memory trick: I Don't Like Private Facts or False Lights.