Appropriation includes two different torts: commercialization and the right of publicity. Explain these two torts and their differences.

Question

What will be an ideal response?

Answer 1

Most people do not want their names or pictures to be in advertisements because they want to remain private. The appropriation tort used to protect people who want privacy is called commercialization. Commercialization prohibits using another person’s name or likeness for advertising purposes without permission. Some people, however, want their names and pictures to be publicized. They make their living by being famous. But they want to control when, how, and where their names and pictures will be used for advertising and other commercial purposes. They also want to be paid for giving their permission. This part of the appropriation tort is the right of publicity. Although both commercialization and the right of publicity prevent the use of someone’s name, picture, likeness, voice, or identity for advertising or other commercial purposes without permission, they differ in two important ways. One difference is that commercialization protects an individual’s dignity connected with personal privacy, while the right of publicity protects the monetary value of using well-known individuals’ names and pictures. A second difference is that courts generally consider commercialization to be a personal right, one that does not survive a person’s death. However, the right of publicity may be considered a property right, not a personal right. In many states, the right of publicity survives after a person’s death.