Appropriation

  1. Introduction

    Appropriation (called misappropriation in many jurisdictions) involves the use of a person’s name or image for promotional purposes, without consent.

    It is closely related to the tort of Right of Publicity, but Wisconsin torts have not considered whether the common law tort continues in light of the Right to Privacy statute.

  2. Cases

    1. Habush v. Cannon, 346 Wis. 2d 709 (Wis. Ct. App. 2013)

      • Procedural Posture: The trial court granted summary judgment to the defendants and the plaintiffs appealed.

      • Law: Wis. Stat. § 995.50(2)(b)

      • Facts: Plaintiffs filed suit for invasion of privacy after defendants bid on plaintiffs’ names in internet search engine ads and linked search results for plaintiffs’ names to defendants’ website. Plaintiffs brought suit under § 995.50(2)(b) and argued that the defendants “used” plaintiffs’ names for advertising purposes without plaintiffs’ consent in violation of the statute.

      • Outcome: The appellate court affirmed the trial court’s grant of summary judgment in favor of the defendants because the defendants’ “use” of plaintiffs’ names was not a “use” contemplated by the statute, which requires the “use” of the name or image as a visible part of some sort of promotion or product.

      • Special Notes: Although in this case the plaintiff was unsuccessful in bringing his claim, the court’s decision as to “use” was highly fact-specific, and a WMC victim may be able to assert a claim if the “use” of her name or image was a visible part of a promotion or product.

    2. Stayart v. Yahoo! Inc., 651 F. Supp. 2d 873 (E.D. Wis. 2009)

      • Procedural Posture: Defendants moved to dismiss.

      • Law: Violation of plaintiff’s common law right of privacy

      • Outcome: Trial court dismissed misappropriation/ right of publicity claims because the alleged conduct did not implicate the Lanham Act and it declined to exercise supplemental jurisdiction over pure state law claims.

      • Facts: Plaintiff brought an action in federal court after discovering that online searches engine queries of her name produced links to pornographic websites, online pharmacies promoting sexual dysfunction drugs, and an adult-oriented online dating service. Plaintiff alleged that the defendants knowingly and intentionally used her name on the internet without authorization in violation of both federal and state law. The court dismissed plaintiff’s federal claims and declined to exercise jurisdiction over the state law claims. Defendant Yahoo! also claimed it could not be held liable due to a federal law protecting information content providers. The federal court’s ruling suggested that a right to publicity claim would fall under an exception to this information content provider protection, but declined to rule as to whether Plaintiff’s action properly stated a right to publicity claim.

      • Special Notes: As the court notes, Wisconsin’s treatment of appropriation claims as right to publicity claims may affect whether or not they fall under an exception to 47 U.S.C. 230, which otherwise provides immunity for websites hosting the content of others.

  3. Practice Pointers

    The relevant section of Wisconsin’s statute, 995.50(2)(b) was copied verbatim from New York’s privacy law, and thus interpretations of that law, and applicable exceptions, may be instructive.1

  1. See N.Y. Civ. Rights Law §§ 50, 51.