This page covers legal information specific to the State of New Jersey. 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.
New Jersey's state appellate courts recognize a common law right of publicity and a comparable protection on a privacy theory under the state's appropriation tort. The United States District Court for the District of New Jersey has noted that both state and federal courts use the concepts of right of publicity and appropriation "interchangeably" when applying New Jersey's law. Hart v. Elec. Arts, Inc., 808 F. Supp. 2d 757, 761 (D.N.J. 2011). The state has no corresponding statute.What constitutes a violation of the common law right of publicity?
In Faber v. Condecor, Inc., 477 A.2d 1289, 195 N.J. Super. 81 (App.Div. 1984), the Appellate Division of the Superior Court of New Jersey held that the unauthorized use of a family photo to sell picture frames constituted use for trade purposes, and therefore gave rise to an appropriation claim. A recent unpublished opinion by the same court, Jeffries v. Whitney E. Houston Acad. P.T.A., A-1888-08T3, 2009 WL 2136174 (N.J. Super. Ct. App. Div. July 20, 2009), interpreted Faber to require four elements for an appropriation claim:1) The defendant appropriated the plaintiff's likeness,
2) without the plaintiff's consent,
3) for the defendant's use or benefit, and
4) damage.
In general, unauthorized publication of an identity for promotional or commercial purposes constitutes appropriation under New Jersey law. Conversely, publication that does not convey such a commercial benefit is considered "incidental" to the publication and does not qualify as appropriation. In Jeffries, the court held that a parent teacher association's sale of a video of a large student performance was only an incidental use of an individual student's identity. Similarly, in Castro v. NYT Television, 851 A.2d 88, 370 N.J. Super. 282 (App.Div. 2004), the same court held that including footage of a group of hospital patients in a television docudrama did not constitute appropriation. In Castro, a group of patients sued various parties involved in the creation of a television show for commercially appropriating the patient's identities. The show, "Trauma: Life in the E.R.," included footage from interviews with the plaintiffs. The court held that because the footage was not used for "trade purposes," the plaintiffs could not bring the claim. The court noted that the plaintiffs did not "allege... that any videotape footage of them was used for any specific promotional purpose."
Note that analysis of whether a publication is incidental might also implicate First Amendment considerations (see First Amendment Defenses, below). In Faber, the court explained that a photo accompanying an article in a newspaper would be considered an "Incidental Use of Name or Likeness" and therefore would not give rise to a cause of action. A photo included as an advertisement, however, would not qualify as incidental.
One may consent to another's use of one's identity for commercial purposes. However, in Faber, the court held that waiver for a particular use of a photo does not constitute waiver for another use. The plaintiffs in Faber had consented to the use of their photo in an instructional guide. The court held that the plaintiffs could still bring a claim against a defendant who used the photo to sell picture frames.
The fourth element, damage, has rarely been addressed as a requirement for a claim in New Jersey's courts.
What is protected?
New Jersey has adopted the Restatement (Second) of Torts, which explains that "one who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy."It appears that a distinctive voice or performance would be protected. In Prima v. Darden Restaurants, Inc., 78 F. Supp. 2d 337 (D.N.J. 2000), the United States District Court for the District of New Jersey held that imitating a singer's voice could infringe on his right of publicity under New Jersey common law. In Prima, the widow of a famous singer claimed the use of her late husband's identity in a restaurant commercial constituted an appropriation. The commercial featured a song that her late husband had made famous, sung by a performer who "unmistakably" copied her husband's voice and manner. Similarly, in Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981), the court held that an Elvis impersonator's show constituted an appropriation, though in that case the show also employed Elvis's name and likeness.
A plaintiff may be able to recover for appropriation of a fictional identity. In McFarland v. Miller, 14 F.3d 912 (3d Cir. 1994), the United States Court of Appeals for the Third Circuit held that an actor would be able to bring a claim under New Jersey law for the appropriation of the identity of his character, depending on the association between the actor and character.
The United States District Court for the District of New Jersey has said that the right of publicity is "generally" for plaintiffs with public personas. Jarvis v. A & M Records, 827 F. Supp. 282, 298 (D.N.J. 1993). However, a plaintiff need not be a celebrity to successfully claim damages. In Canessa v. J. I. Kislak, Inc., 235 A.2d 62, 97 N.J. Super. 327 (Law Div. 1967), the plaintiff, a veteran with eight children, enlisted the help of real estate agency to help him to find a home for his family. After purchasing a house, the plaintiff allowed a paper to publish a piece on him and his search. The real estate agency subsequently included the article in its promotional materials for its salesmen, which the plaintiff claimed was an unauthorized appropriation. The Law Division of the Superior Court of New Jersey agreed, explaining:
Entirely apart, however, from the metaphysical niceties, the reality of a case such as we have here is, in the court's opinion, simply this: plaintiffs' names and likenesses belong to them. As such they are property. They are things of value. Defendant has made them so, for it has taken them for its own commercial benefit.
The United States Court of Appeals for the Third Circuit has held that simply using one's name as "placeholder," such as "John Doe," does not give rise to a claim under New Jersey law by a person who shares that name. Botts v. N.Y. Times Co., 106 Fed. Appx. 109, 110 (3d Cir. 2004).
Transfer of rights by death or assignment
First Amendment Defenses
Some forms of speech, such political speech or news/entertainment, are protected by the First Amendment. Consider the following examples of protected speech.In Bisbee v. John C. Conover Agency, Inc., 452 A.2d 689, 186 N.J. Super. 335 (App.Div. 1982), a home-buyer claimed that publishing his name, photo, occupation, and information about the home that he had purchased constituted an appropriation. The Appellate Division of the Superior Court of New Jersey noted that the newspaper publishing the information had a "limited privilege" connected to the First Amendment to publish news articles. The court held that because the information about the transaction was already public, and because the paper's "minimally violative" disclosure of the home-buyer's job was "solely incidental to the news aspects of the sale," the plaintiff could not bring an appropriation claim. In its later ruling in Castro, the Appellate Division cited the decision in Bisbee and noted "it is irrelevant whether a videotape is broadcast in connection with a television story about important public events or a subject that provides only entertainment and amusement."
In G.D. v. Kenny, 15 A.3d 300, 205 N.J. 275 (2011), the New Jersey Supreme Court held that the inclusion of plaintiff's name and image in political paraphernalia was not a commercial use, and therefore a plaintiff could not bring an appropriation claim. In G.D., a political organization and its marketing partner distributed leaflets describing a politician's prior drug conviction. The court held that such campaign materials are "the type of speech that is at the heart of First Amendment," and that the financial interests of the marketing firm did not render the materials commercial.
For a good example of the limits of the scope of First Amendment defenses to appropriation claims, consider Tellado v. Time-Life Books, Inc., 643 F. Supp. 904 (D.N.J. 1986). In Tellado, the United States District Court for the District of New Jersey held that while the First Amendment would protect the publication of a soldier's photo in a book about the Vietnam War, it would not protect the publication of the photo in the marketing materials enclosed within the book. As the court explained, "the defendant's right of free expression is abridged only insofar as it is required to share some of its profits with the individual whose likeness is helping to stimulate those profits." Also consider Presley, in which the court drew an analogy between "creative comment precluding a right of publicity claim" and fair use. In Presley, the court held that the Elvis impersonator's show was mainly an exploitation and not sufficiently "creative" to qualify for protection.
Damages and other remedies
Damages are available for appropriation claims under New Jersey law. Faber at 1295. Whether or not one is a celebrity will affect the calculation of damages. Canessa at 350. Calculation of damages for an appropriation claim may be subject to the degree to which the plaintiff retains ownership of the identity. McFarland at 922. Canessa noted that "it seems to us that however little or much plaintiff's likeness and name may be worth, defendant, who has appropriated them for his commercial benefit, should be made to pay for what he has taken, whatever it may be worth." Canessa at 351.There are few opinions addressing the question of calculating damages under New Jersey law in appropriation cases. In a recent unpublished opinion, Leibholz v. Hariri, Civ. No. 05-5148 (D.N.J. Apr. 15, 2011), the United States District Court for the District of New Jersey quoted the Restatement (Second) of Torts in its calculation of damages for an appropriation claim. For privacy torts, the court explained, the Restatement looks to:
(a) the harm to (the plaintiff's) interest in privacy resulting from the invasion; (b) (the plaintiff's) mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and (c) special damage of which the invasion is a legal cause.
In Faber, the Appellate Division of the Superior Court of New Jersey held that the plaintiff could claim damages for the "mental anguish" they suffered from the unauthorized publication of a family photo. On the other hand, in McFarland, the United States Court of Appeals for the Third Circuit held that, under its interpretation of New Jersey law, "deprivation of property" and "lost earnings" could be considered under the right of publicity but suggested that psychological harm ought to be associated with an invasion of privacy claim. In this case, the federal court may have been drawing a distinction between right of publicity and appropriation, though again Hart indicates that both federal and state courts treat them "interchangeably."
New Jersey state courts have also issued injunctive relief for appropriation claims. Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458, 96 N.J. Super. 72, 80 (Ch. Div. 1967). Federal courts interpreting New Jersey law have done the same, including issuing a preliminary injunction. Presley at 1382.
Statute of limitations
As a property right, at least one New Jersey court has held that New Jersey's right of publicity claim is subject to the six-year statute of limitations for invasion of property rights. Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 352 (Law Div. 1967).
