Elements of Nevada's Theories of Liability

Intrusion Upon Name or Likeness of Another

 

Intrusion Upon Name or Likeness of Another

 

There are two types of claims Nevada (aside from identity theft) for the intrusion upon the name or likeness of another. The first, appropriation, is for unfamous ordinary people. The second, the right of publicity, if for famous or celebrated people. As the Nevada Supreme Court explained

As said, in the case of a private person, the invasion of privacy resulting from misuse or misappropriation of that person’s name or identity is a personal injury, an injury that is redressable by general damages for the mental anguish and embarrassment suffered by reason of the unwanted public use of the private person’s name. When, however, the name of a famous or celebrated person is used unauthorizedly, that person’s main concern is not with bruised feelings, but rather, with the commercial loss inherent in the use by another of the celebrated name or identity. The commercial or property interest that celebrities have in the use of their names and identities is protected under what has been termed the “right of publicity.”
There is a certain reciprocity between the two kinds of interests, personal and proprietary; and, accordingly, the more the aspects of one tort are present, the less likely are the aspects of the other tort to be present. The more obscure the plaintiffs are, the less commercial value their names have and the more such plaintiffs will be seeking to redress personal interests in privacy in a common law appropriation action, and not commercial or property interests in their name or likeness as a claimed violation of a right of publicity. The more famous and celebrated 1284 the plaintiffs, the less injury is likely to be claimed to their privacy interests, their interest in being “left alone,” because their names and likenesses already have wide recognition and are not appropriate subjects for invasions of personal privacy. Generally speaking, a private person will be seeking recovery for the appropriation tort, and a celebrity will be recovering for the right of publicity tort. A celebrity, whose identity, by definition, is well known, will not ordinarily be heard to complain of “indignity,” mental distress, or other personal injury resulting from the public use of his or her name; and consequently, such a person ordinarily will be suing for invasion of the right of publicity and will not likely be able to prosecute a successful claim under the common law privacy tort, appropriation of name or likeness.
People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1278 (Nev. 1995).