In Texas, misappropriation of name and likeness can result in special and general damages. The former refers to economic loss, while the latter refers to non-monetary damages. Many celebrities have won lawsuits over misappropriated name and likeness in advertisements. Ford Motor Company hired a singer to imitate Bette Midler's voice, and she sued because the singer's voice sounded similar to her own.
In Texas, courts have interpreted the misappropriation statute to extend beyond commercial speech. In one case, a federal court found that a movie's name and likeness was protected under the First Amendment as long as it was newsworthy and incidental. Commercial speech, however, is subject to lesser protection under the First Amendment. The Texas courts have cited Matthews with approval. Generally, a plaintiff has one to six years to file a lawsuit against a person who allegedly misappropriated her name and likeness in an exhibition or publication. car accident lawyers houston
When it comes to the use of a person's name, likeness, or photograph for commercial purposes, there are several exceptions to this general rule. In some cases, the use of a name or likeness is allowed even if it is not a "fair" or "legitimate" use. For example, a documentary on skiing may use a skiing photo, and the photographer would be liable for infringement if he posed for it. But, a skiing documentary in a public place would be more difficult to prove, and a Presidential candidate would have to prove that the use of his name and likeness constituted misappropriation.
Another common defense to a misappropriation lawsuit is newsworthiness. For example, if a celebrity's name or likeness appears on a television program, the news organization cannot be held liable for using the actor's identity in that broadcast. Furthermore, newspapers are insulated from liability for front page pictures if the purpose of the photo or picture is newsworthy. But, the plaintiff must show that the use in question bears no reasonable relation to news or commentary.
In addition to misappropriation of name, the plaintiff must show that the use of his or her name or likeness was legitimate. A false claim against the defendant would be unjustified. The plaintiff must also prove that it was not commercially exploited or an "unjust enrichment" in order to win. A court will usually consider the plaintiff's request for partial or total summary judgment based on this ruling. Likewise, the plaintiff may be entitled to damages for unjust enrichment.
Misappropriation of name and likeness is another common cause of action against a company for infringement of its rights. While a celebrity might have the advantage of being protected by the law, the protection offered by the right of publicity does not necessarily extend to commercial exploitation. However, there are other types of cases, such as those in which celebrities do not enjoy exclusive rights to their names and likeness. In some cases, a celebrity can file a misappropriation of name and likeness lawsuit.
