This page covers legal information specific to the State of North Carolina. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.
North Carolina does not provide a statutory basis for right of publicity claims. In 2009, the North Carolina legislature proposed, but did not enact, legislation that addressed the right of publicity.
North Carolina appellate courts have only applied the missapropriation branch of the invasion of privacy tort in two cases. The Supreme Court of North Carolina last addressed misappropriation of image in 1938.
In Flake v. Greensboro News, 212 N.C. 780 (1938), the North Carolina Supreme Court recognized a cause of action for the unauthorized use of one's photograph or likeness in connection with an advertisement or other commercial enterprise. In Flake, the plaintiff brought suit on the basis of an advertisement published in a local newspaper that featured a picture of her dressed in a bathing suit. She showed evidence that the photograph was published in this instance without her consent. The court held that the unauthorized use of a plaintiff's photograph in connection with an advertisement or other commercial enterprise would give rise to a cause of action, but that absent a showing of special damages, only nominal and injunctive relief could be granted.
It is not clear from the opinion in Flake whether the court treats the right of publicity as a property or privacy-based right. The court explicitly did not reach the question of whether First Amendment or newsworthiness defenses might apply to such a cause of action in other contexts.
In Barr v. Southern Bell Tel. and Tel. Co., 13 N.C. App. 388 (1972), a telephone company published a phone directory including an advertisement for the plaintiff's rug cleaning company; however, although the telephone company included the plaintiff's name, it used the likeness of an unrelated third party in connection with the plaintiff's name. The plaintiff had signed an agreement that allowed for the commercial use of his image; however, the appellate court held that the publication of plaintiff's name in connection with the mistaken image exceeded the scope of this consent, and might justify a finding of invasion of privacy. The decision implies that consent is a defense, but that if a publication exceeds the scope of consent, that the publication may be actionable.
A right of publicity claim in North Carolina is likey subject to the state's general three-year statute of limitations for personal injury claims. N.C. Gen. Stat. § 1-52(16).
