Plaintiff Identification in the “Persona Torts”: What Defamation Law Can Offer the Right of Publicity and Related Claims

Abstract

Courts applying the persona torts – right of publicity, appropriation and false endorsement claims under the Lanham Act – often lack a precise methodology for determining whether a plaintiff has been depicted or identified. A number of courts have accepted the ambiguous notion that a defendant need only appropriate a plaintiff’s “identity.” Moreover, these courts apply an essentially impressionistic approach to whether that appropriation has occurred. This article, drawing from defamation doctrine, synthesizes a more nuanced and rigorous approach to the depiction question – an approach that also better safeguards important First Amendment values.