Privacy torts were not recognized until the 1998 case, Lake v. Walmart Stores. The Lake decision finally recognized the privacy torts of appropriation, intrusion upon seclusion, and public disclosure. However, Chief Justice Blatz noted:
We decline to recognize the tort of false light publically at this time. We are concerned that claims under false light are similar to claims of defamation, and to the extent that false light is more expansive than defamation, tension between this tort and the First Amendment is increased.
Lake, 582 N.W.2d at 235.
Invasion of privacy by appropriation means when one uses another’s name or likeness for their own use or benefit. The Federal District Court of Minnesota stated that the invasion of privacy by appropriation does not exist to protect one’s name, rather to protect the value associated with that name. Kovatovich v. Kmart Corp., 88 F. Supp. 2d, 975, 986 (D. Minn. 1999).
Requires Intent to Benefit
A plaintiff must prove that the defendant intended to benefit from the use of their name or likeness in order to be successful with an appropriation claim. However, the intent does not need to be pecuniary. In other words, a plaintiff can have a successful appropriation claim even though the defendant’s use was not commercial and there was no monetary gain. Faegre & Benson, LLP v. Purdy, 367 F. Supp. 2d, 1238, 1247-48 (D. Minn. 2005). Because intent is required, incidental use is not protected under Minnesota law.
Consent is an affirmative defense to an appropriation claim. Zacchini v. Scripps-Howard Broadcasting Co., 97 S. Ct. 2849 (1977). But, courts have held that even if consent was given, such consent can be withdrawn if the withdrawal is given prior to any publication. Virgil v. Time, Inc., 527 F. 2d 1122, 1126, (9th Cir. 1975).
A plaintiff must show that an individual was identified for their appropriation claim. If the “appropriation” does not name an individual, then it is not actionable. But, if a pseudonym identifies the individual, even if the individual is not specifically identified, an appropriation claim may be maintained. Faegre, 367 F. Supp. 2d at 1248. The 6th Circuit Court of Appeals has held that even a slogan or catch phrase can be enough to identify an individual for an appropriation claim. Carson v. Here’s Johnny Portable Toilets, 698 F. 2d 831 (6th Cir. 1983).
Lastly, a corporation does not have standing to make an appropriation claim. Only an individual has standing to make an appropriation claim. But an employer does have standing to assert collective privacy rights of its employees. Faegre, 447 F. Supp. 2d at 1018.