Washington D.C. courts recognize a common law claim for misappropriation of another's name or likeness. D.C. courts do not distinguish between right of publicity and misappropriation but merge the two under a claim for misappropriation. D.C. has no corresponding statute.
THE COMMON LAW RIGHT
What the Common Law Right Protects
Washington D.C. has adopted the Restatement (Second) of Torts § 652C for a claim of misappropriation/right of publicity, which provides that "[o]ne who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy."
The required elements for a misappropriation claim are:
- An unauthorized use of the plaintiff's identity or persona, that is
- For the use or benefit of the defendant.
Evidence that the defendant profited from the unauthorized use of the plaintiff's name or likeness is insufficient to prove liability in a misappropriation action. Instead, the plaintiff must prove not only that the defendant derived a benefit from the plaintiff's identify but also that there is a public interest or other value in that name or likeness. If there is no recognizable value associated with the name or likeness of the plaintiff, a misappropriation claim will fail. In Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580 (D.C. 1985), a plastic surgeon displayed "before and after" photographs of a patient's face. While the photos were on display for the public, the court held that a claim for misappropriation failed because the patient's identity was not revealed and because the patient did not prove that there was public interest or other value in her face or likeness.
However, a misappropriation claim may succeed even if the plaintiff's name or likeness does not have specific commercial value, if it nevertheless has some other kind of "value" that the defendant has turned to his own benefits and purposes. Tripp v. United States, 257 F. Supp. 2d 37, 43 (D.D.C. 2003) (finding that plaintiff's notoreity might have "value" for certain purposes).
In Polsby v. Spruill, 1997 U.S. Dist. LEXIS 11621 (D.D.C. Aug. 1, 1997), the plaintiff claimed that an author had based a main character in his novel on the plaintiff's life. The court ruled that the plaintiff had failed to meet her burden of proof because she had presented no evidence that the defendant knew her or knew about her prior to outlining his novel and because there were more differences than similarities between the plaintiff's life and the novel's main character's life.
Damages
In D.C., there are no cases interpreting damages for a misappropriation claim. If D.C. considers a misappropriation claim to be based on a privacy interest, damages may resemble those awarded for public disclosure of private facts. These may include general damages, special damages, or punitive damages.
General damages may be available to a plaintiff who has suffered emotional distress or personal humiliation if his private life is given publicity. Vassialiades, 492 A.2d at 594. Such damages are available only if such distress or humiliation would normally occur after an invasion on that individual's privacy. The harm also has to be of a normal and reasonable extent.
Special damages for a claim of invasion of privacy may include harm to a plaintiff's commercial interests. In Black v. United States, 389 F. Supp. 529, 538 (D.D.C. 1975), the plaintiff successfully recovered special damages on a publication of private facts claim after the FBI electronically eavesdropped and passed information to the Department of Justice.
Punitive damages are meant to punish for an invasion of privacy when a person's conduct is "malicious, wanton, reckless, or in willful disregard for another's rights." Vassialiades, 492 A.2d at 593. Courts are reluctant to award punitive damages; a high burden is placed on the plaintiff to show that punitive damages are supported by "evidence of record and the law." Id. at 593.
Limitations and Defenses
There are two First Amendment defenses that the D.C. courts recognize to a misappropriation claim: the newsworthiness privilege and the incidental use privilege.
The newsworthiness privilege applies to "advertisements for books, films, and other publications concerning matters of public interest." Lane v. Random House, 985 F. Supp 141, 146 (D.D.C. 1995). If a person's identity or likeness has "no real relationship" to the publication at issue, the newsworthiness privilege will fail.
The incidental use privilege protects against liability when an individual's name or likeness is used in connection with that person's public activities. Under this privilege, a person's likeness "is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities." Lane, 985 F. Supp at 147 (quoting Restatement (Second) of Torts § 652C, comment d (1977)). Further, incidental use "for a purpose other than taking advantage of a person's reputation or the value associated with his name will not result in actionable appropriation." Vassiliades, 492 A.2d at 592. In Klein v. McGraw-Hill, 263 F. Supp. 919 (D.D.C. 1966). the plaintiff became a public figure by making advances in the field of photography; the defendant publisher used the plaintiff's name and photograph in a book sold for profit. The court held that such use was incidental in light of the plaintiff's public activities.
Statute of Limitations
Under D.C. Code § 12-301, there is no specific statute of limitations for a misappropriation claim. The general statute of limitations is 3 years. D.C. Code § 12-301(8). If misappropriation is asserted in connection with another claim based on the same facts for which there is a prescribed statute of limitations, the court will likely apply that statute of limitations to the misappropriation claim. Mittleman v. United States, 104 F.3d 410 (D.C. Cir. 1997).
