1

Imagine a corporate executive named John Doe who's worth about $100 billion and ranks as one of the tree most famous people in the world. I want to write a tell-all book about him, focusing on corruption. I'm going to make the case that he's a cutthroat businessman who knows how to bribe people and manipulate the law.

My book is titled "John Doe 101." The front cover features a photo of John Doe. (The photo is public domain.) The book features several pictures of John Doe, including photos and caricatures.

I also make a companion poster titled "John Does's Tips for Getting Rich by Cheating People." It features a caricature of John Doe above a list of ten tips and sells for $5.

I then make a flyer advertising the book and poster. The flyer features a picture of John Doe.

Could any of the above be characterized as unlawful commercial appropriation of likeness?

My guess is that everything I've described is perfectly legal except perhaps the poster.

3

In Washington, the tort is defined at RCW 63.60.050:

Any person who uses or authorizes the use of a living or deceased individual's or personality's name, voice, signature, photograph, or likeness, on or in goods, merchandise, or products entered into commerce in this state, or for purposes of advertising products, merchandise, goods, or services, or for purposes of fund-raising or solicitation of donations, or if any person disseminates or publishes such advertisements in this state, without written or oral, express or implied consent of the owner of the right, has infringed such right. An infringement may occur under this section without regard to whether the use or activity is for profit or not for profit.

But the exceptions are listed at RCW 63.60.070:

For purposes of RCW 63.60.050, the use of a name, voice, signature, photograph, or likeness in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest, including, without limitation, comment, criticism, satire, and parody relating thereto, shall not constitute a use for which consent is required under this chapter. A matter exempt from consent under this subsection does not lose such exempt status because it appears in the form of a paid advertisement if it is clear that the principal purpose of the advertisement is to comment on such matter.

So it sounds like all of these fall within the definition, but are then exempted from the law's reach. The poster is the closest question, but I'd say all of these would be protected by the First Amendment, even if the statute defined it as misappropriation.

If a reasonable person would think the poster was actually full of tips from John Doe and had his endorsement, it might be a problem, but your description suggests that would not be the case.

  • I suppose I could cover my bases by including a footnote: "John Doe has never actually publicly stated any of these tips." – David Blomstrom Oct 5 '18 at 1:49
  • @DavidBlomstrom A disclaimer would make it perfectly clear. You wouldn't even have to be that expansive. You could say: "This poster is not authorized or endorsed by John Doe." Parody, satire and criticism all benefit from extremely strong First Amendment protections. – ohwilleke Oct 5 '18 at 1:50
1

Even if the use of the picture of John Doe is not actionable, because of a law such as the Washington law quoted in another answer (and note that such laws vary by state in the US) or because of First Amendment protections (in the US)such a book or poster might be considered defamatory. John Doe is, as described, almost surely a public figure, which means that he will find it hard to win a defamation suit in the US, as he will need to prove "actual malice". But if any of the factual claims are false, and the author knew that they were false, or failed to properly check, a defamation case might be made. Care should be taken in any such situation.

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