Restatement (Third) of Unfair Competition, s.46-49

Restatement (Third) of Unfair Competition / Current through June 2006
Copyright © 1995-2007 by the American Law Institute

Chapter 4. Appropriation Of Trade Values / Topic 3. Right Of Publicity

§ 46. Appropriation Of The Commercial Value Of A Person’s Identity: The Right Of Publicity

One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability for the relief appropriate under the rules stated in § § 48 and 49.

§ 47. Use For Purposes Of Trade

The name, likeness, and other indicia of a person’s identity are used "for purposes of trade" under the rule stated in § 46 if they are used in advertising the user’s goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user. However, use "for purposes of trade" does not ordinarily include the use of a person’s identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.

§ 48. Injunctions: Appropriation Of The Commercial Value Of A Person’s Identity

(1) If appropriate under the rule stated in Subsection (2), injunctive relief may be awarded to prevent a continuing or threatened appropriation of the commercial value of another’s identity by one who is subject to liability under the rule stated in § 46.

(2) The appropriateness and scope of injunctive relief depend upon a comparative appraisal of all the factors of the case, including the following primary factors:
(a) the nature of the interest to be protected;
(b) the nature and extent of the appropriation;
(c) the relative adequacy to the plaintiff of an injunction and of other remedies;
(d) the relative harm likely to result to the legitimate interests of the defendant if an injunction is granted and to the legitimate interests of the plaintiff if an injunction is denied;
(e) the interests of third persons and of the public;
(f) any unreasonable delay by the plaintiff in bringing suit or otherwise asserting his or her rights;
(g) any related misconduct on the part of the plaintiff; and
(h) the practicality of framing and enforcing the injunction.

§ 49. Monetary Relief: Appropriation Of The Commercial Value Of A Person’s Identity

(1) One who is liable for an appropriation of the commercial value of another’s identity under the rule stated in § 46 is liable for the pecuniary loss to the other caused by the appropriation or for the actor’s own pecuniary gain resulting from the appropriation, whichever is greater, unless such relief is precluded by an applicable statute or is otherwise inappropriate under the rule stated in Subsection (2).

(2) Whether an award of monetary relief is appropriate and the appropriate method of measuring such relief depend upon a comparative appraisal of all the factors of the case, including the following primary factors:
(a) the degree of certainty with which the plaintiff has established the fact and extent of the pecuniary loss or the actor’s pecuniary gain resulting from the appropriation;
(b) the nature and extent of the appropriation;
(c) the relative adequacy to the plaintiff of other remedies;
(d) the intent of the actor and whether the actor knew or should have known that the conduct was unlawful;
(e) any unreasonable delay by the plaintiff in bringing suit or otherwise asserting his or her rights; and
(f) any related misconduct on the part of the plaintiff.