Appropriation of Name or Likeness

A fitness brand runs a regional ad campaign in Houston using the photograph of a local trainer. No contract was signed. No payment was offered. The trainer never approved the use. That scenario describes appropriation of name or likeness, a privacy tort that arises when a person's identity, image, name, or persona is taken and used for commercial gain or benefit without consent. Texas courts recognize this tort under the common law right of publicity, and plaintiffs across the state have used it to recover fair compensation after businesses, advertisers, and media companies profited from their identity. The tort does not require fame. Any person whose name or image was taken and used to generate commercial value without permission has grounds to bring a claim.

What is Appropriation in Law?

Appropriation in law is the act of taking and using someone's identity for the benefit of another party without that person's authorization. The word "appropriation" in this legal context carries a specific meaning distinct from its everyday usage. It describes the commercial taking of a personal attribute, such as a name, photograph, likeness, voice, or signature, and applying it to generate profit, attract customers, or increase brand credibility. Texas courts have examined appropriation claims since the mid twentieth century under the common law right of publicity framework, which treats a person's identity as property with measurable commercial value. When a party uses that property for advertising, promotion, or financial gain without a valid release, the taking qualifies as appropriation regardless of whether the plaintiff is a public figure or a private individual.

How Do Courts Determine Unauthorized Use of Identity?

Texas courts examine 3 primary factors when determining whether a use of identity was unauthorized. First, courts look for the presence or absence of a written consent agreement, licensing contract, or release signed before the use occurred. Second, courts assess whether the use went beyond any consent that was given, since authorization for one context does not extend to all contexts. Third, courts consider whether a reasonable person viewing the content would understand the plaintiff's identity as being associated with, endorsing, or affiliated with the defendant's product or service. In Cardtoons, L.C. v. Major League Baseball Players Association, 95 F.3d 959 (10th Cir. 1996), courts considered the tension between right of publicity protections and expressive use, a tension Texas courts have also addressed when identity appears in content that blends commercial and editorial purposes. An attorney will gather contracts, email correspondence, marketing briefs, and published content to build the unauthorized use record.

Is Appropriation of Name or Likeness a Type of Invasion of Privacy?

Appropriation of name or likeness is one of 4 recognized torts within invasion of privacy doctrine, as codified in Restatement (Second) of Torts Section 652C and adopted by Texas courts. The other 3 are intrusion upon seclusion, public disclosure of private facts, and false light invasion of privacy. Appropriation stands apart from the other 3 because the injury is not tied to secrecy, embarrassment, or false statements. The plaintiff does not need to show that anything private was revealed or that any false impression was created. The entire claim rests on the question of whether the plaintiff's identity was taken and used for someone else's commercial benefit. That distinction makes appropriation uniquely relevant to advertising disputes, influencer marketing conflicts, and brand endorsement cases where the person's identity carries measurable financial value.

What Must Be Proven in an Appropriation of Likeness Claim?

Establishing an appropriation of likeness claim (also called commercial appropriation) requires proving 4 elements. Texas courts require each element to be supported by evidence, and a deficiency in any 1 element can defeat the claim.

1. Use of Identity. The defendant used a recognizable personal attribute belonging to the plaintiff, including a name, photograph, voice, signature, or other feature that identifies the plaintiff to the relevant audience. The use must be identifiable as the plaintiff specifically, not merely similar to the plaintiff.

2. Lack of Consent. No valid authorization existed at the time of the use. An attorney will scrutinize the scope of any prior agreement to determine whether the defendant's specific use fell within or outside any permission that was granted.

3. Commercial Advantage. The use served the defendant's financial, promotional, or reputational interests. Texas courts have found commercial advantage in paid advertisements, unpaid social media posts connected to product promotion, and event marketing materials where the plaintiff's identity was used to draw audiences or imply endorsement.

4. Harm. The plaintiff suffered a recognizable injury. Texas Civil Practice and Remedies Code Section 98.002 acknowledges that harm in these cases includes not only financial loss but also the loss of control over the commercial value of one's own identity.

An attorney reviewing a potential appropriation claim will assess all 4 elements against the available evidence before advising whether litigation, a cease and desist, or a licensing demand is the appropriate first step.

Does the Use Have to Be Commercial to Qualify as Appropriation?

Whether the use must be commercial is one of the most contested questions in appropriation in law cases, and the answer in Texas is yes, with important boundaries. Pure news reporting, documentary journalism, and editorial commentary fall outside the scope of appropriation because they serve informational purposes protected under the First Amendment. The Texas Supreme Court addressed the tension between right of publicity and free expression in cases involving public figures, drawing the line between content that informs the public and content that sells a product. A newspaper article featuring a person's photograph is not appropriation. That same photograph placed on product packaging, used in a sponsored post, or embedded in a paid advertisement crosses into commercial territory. Courts also examine hybrid content, such as a branded magazine feature or a promotional video disguised as editorial, to determine whether commercial intent drives the primary purpose of the use.

Do You Need to Prove Harm in Appropriation Tort Claims?

Harm is a required element in appropriation tort law claims, but the definition of harm is broader than most plaintiffs expect. Financial loss is the clearest form of harm, calculated as the fair market value of the unauthorized use or the licensing fee the plaintiff would have charged for the same use. Texas courts also recognize emotional distress as compensable harm when the unauthorized use caused reputational damage, public embarrassment, or loss of dignity. In cases governed by Texas Civil Practice and Remedies Code Section 98.002, which addresses the right of publicity for deceased individuals, statutory damages replace the need to prove individualized financial loss for each use. For living plaintiffs, courts in the Northern District of Texas and Western District of Texas have awarded damages in cases where the plaintiff's prior commercial relationships established a documented baseline value for the identity, making it possible to calculate what the unauthorized use was worth.

What Are Examples of Appropriation of Name or Likeness?

Appropriation of name or likeness occurs across industries and platforms. Each category below represents a distinct pattern that Texas courts and federal courts applying Texas law have examined.

1. Advertising Placement. A company inserts a person's photograph into a print or digital advertisement to imply that the person endorses the product or chooses the brand. The person receives no compensation and provided no written release for any advertising use.

2. Merchandise Production. A retailer prints a person's name, image, or likeness on clothing, accessories, or collectible items and sells those items for profit without authorization from the individual whose identity appears on the product.

3. Brand Association. A business uses a person's name in a slogan, logo, or campaign tagline to suggest an affiliation or partnership. The implied connection benefits the brand commercially while the person whose name is used receives nothing and gave no permission.

4. Social Media Promotion. A company reposts a person's photograph on its business account, uses a customer's image in a paid boosted post, or embeds user generated content into a sponsored campaign without securing written consent from the person pictured.

5. Simulated Endorsement. Marketing materials attribute a promotional statement or product review to a named individual who never made the statement and never approved its inclusion in any commercial content.

An attorney handling a Texas appropriation claim will document the specific type of use, preserve copies of all published content, and calculate the commercial value generated by each instance of unauthorized identity use.

Is Using Someone's Photo in Advertising without Permission Illegal?

Using someone's photo in advertising without permission is a civil wrong under Texas common law and creates direct legal exposure for the advertiser. Texas courts have consistently held that a photograph placed in an advertisement carries a presumptively commercial purpose because advertising exists to generate sales, attract customers, or build brand recognition. The plaintiff does not need to prove that the company knew permission was required. Willful ignorance of consent requirements does not shield a defendant from liability. In cases where the photograph was licensed for one purpose, such as editorial use, and then repurposed for advertising, courts treat the secondary commercial use as a separate and unauthorized taking. Damages can include the fair market value of the advertising use, disgorgement of revenue the campaign generated, and punitive damages under Texas Civil Practice and Remedies Code Section 41.003 when the conduct was willful or grossly negligent.

Can Social Media Posts Count as Appropriation of Likeness?

Social media posts qualify as appropriation of likeness when a business account uses a person's name or image to promote products, attract followers who represent a monetizable audience, or create the impression of a paid sponsorship that does not exist. The medium does not reduce the legal exposure. A boosted Facebook post featuring an unauthorized photograph carries the same liability as a print advertisement featuring the same photograph. Texas courts apply the same commercial use standard to digital content that they apply to traditional media. The 2020 Ninth Circuit decision in Maloney v. T3Media, Inc. (which examined digital image licensing) reflects a broader judicial recognition that identity rights apply to online platforms. An attorney will examine the account's commercial purpose, the reach of the post, and whether the post was organic or paid to determine whether the commercial advantage element is satisfied.

Can a Company Use Employee Images without Consent?

A company cannot use employee images without consent, and an employment agreement does not automatically grant permission for commercial use of an employee's identity. Texas courts and federal courts applying Texas law have required that consent for identity use be specific and informed. A standard offer letter or at will employment contract that mentions photography in passing does not satisfy the consent requirement for a paid advertising campaign, product catalog, or branded social media account. Companies that use employee photographs in any commercial context without a separate, signed image release create liability under the right of publicity and potentially under the Texas Workforce Commission guidelines governing workplace privacy. An employment attorney and a personal injury attorney may both be consulted when an employee discovers that company marketing materials have been using the employee's likeness throughout the duration of employment without documented authorization.

Is Consent Required for All Uses of a Person's Image?

Consent is required for commercial uses of a person's image but not for all uses. Texas recognizes editorial, journalistic, and educational uses as protected from appropriation claims under the First Amendment. A news broadcast using a person's image to report a public event does not commit appropriation. A company using that same image in a product advertisement does.

What is Considered Commercial Use of Someone's Likeness?

The word "commercial" carries a specific legal meaning in misappropriation of likeness (right of publicity) disputes, and courts define it more broadly than most people expect. Commercial use includes paid advertisements in print, digital, broadcast, and outdoor formats. It also includes unpaid promotional content on company owned platforms, branded packaging, event banners, pitch decks used to secure investor funding, and internal corporate communications distributed to customers or the public. In Deckert v. Bloomingdale's, Inc., the court recognized that commercial use encompasses any context where a business derives reputational or financial benefit from the association with a person's identity, even if no direct sale is tied to the specific content. Texas courts look at the primary function of the content rather than its label. A company that calls an advertisement an "editorial piece" while placing it in a paid media slot does not avoid the commercial use classification simply by changing the label.

What Happens if a Brand Uses a Celebrity Image without Permission?

A brand that uses a celebrity image without permission faces claims under both Texas right of publicity common law and the Lanham Act, 15 U.S.C. Section 1125(a), which prohibits false endorsement in interstate commerce. The 5th U.S. Circuit Court of Appeals, which covers Texas federal courts in Dallas, Houston, San Antonio, and Austin, has addressed false endorsement claims where celebrity imagery implied a commercial relationship that did not exist. Damages in these cases include disgorgement of the brand's profits attributable to the unauthorized use, the celebrity's lost licensing fees calculated at fair market rates, and statutory damages under the Lanham Act. Texas courts can also award attorney fees under Section 1117(a) of the Lanham Act in exceptional cases. The financial exposure in celebrity misappropriation of name cases often exceeds the cost the brand would have paid for a legitimate licensing agreement, making unauthorized use a costly business decision.

Is Influencer Content Protected Under Likeness Rights?

Influencer content is protected under likeness rights, and an influencer's name, image, voice, and persona carry documented commercial value that Texas right of publicity law recognizes. An influencer with a monetized platform, brand partnership history, and audience metrics has measurable identity value that courts can use to calculate damages when a company uses the influencer's content or name without a valid agreement. The Federal Trade Commission's 2023 updated endorsement guidelines reinforce that sponsored content requires clear disclosure and consent from the individual whose identity is associated with the brand. A company that reposts influencer content without authorization, uses an influencer's name in its own marketing, or embeds influencer photographs in paid media violates both the right of publicity and potentially FTC regulations. An attorney handling such a claim will review the influencer's prior brand contracts to establish the market rate for the unauthorized use.

What Damages Can Be Awarded for Appropriation of Likeness?

Texas courts recognize 4 primary categories of damages in appropriation of likeness claims. Each category addresses a distinct type of loss the plaintiff experienced.

1. Actual Damages. Actual damages, or compensatory damages, cover the measurable financial harm caused by the unauthorized use, including the fair market value of the use, lost licensing revenue the plaintiff would have earned from a paid agreement, and out of pocket losses directly connected to the misappropriation event.

2. Statutory Damages. Texas Civil Practice and Remedies Code Section 98.002 establishes a right of publicity framework for deceased individuals and provides a statutory damages pathway in cases involving posthumous identity use. For living plaintiffs, actual damages and punitive damages govern the recovery under common law claims.

3. Punitive Damages. Punitive damages are available under Texas Civil Practice and Remedies Code Section 41.003 when the plaintiff proves by clear and convincing evidence that the defendant acted with malice, fraud, or gross negligence. A company that was warned about the unauthorized use and continued it faces a stronger punitive damages argument than one that stopped use upon demand.

4. Disgorgement of Profits. Courts can require a defendant to surrender profits generated by the advertising campaign, product line, or promotional content that incorporated the plaintiff's identity without authorization. Disgorgement applies when the defendant's earnings from the unauthorized use exceed the plaintiff's measurable out of pocket losses.

An attorney will calculate each damages category separately, gather the defendant's revenue records through discovery, and present evidence of the identity's commercial value to establish the full scope of fair compensation the plaintiff is entitled to.

Can Companies Be Sued for Using Someone's Image without Permission?

Companies can be sued for using someone's image without permission under Texas common law, and both direct liability and vicarious liability apply. A company bears direct liability when its own employees, executives, or marketing department authorized, created, or published the unauthorized content. Vicarious liability attaches when a contracted agency, freelance photographer, or third party vendor used the image on the company's behalf within the scope of the agency relationship. The company cannot escape liability by pointing to a vendor contract that assigned responsibility for obtaining releases, because courts treat the company as the final beneficiary of the unauthorized use. Texas courts have also applied successor liability in cases where a company acquired a brand or campaign from another business without verifying that proper consent was obtained for all identity uses contained in the acquired marketing materials. Plaintiffs may seek injunctive relief, actual damages, disgorgement, and punitive damages in the same lawsuit.

Can Courts Stop Unauthorized Use of Someone's Likeness?

Courts can and do issue injunctive relief to halt unauthorized use of someone's likeness when the plaintiff establishes a likelihood of success on the merits and demonstrates that ongoing use causes harm that money alone cannot repair. Under Texas Rule of Civil Procedure 683, a Texas state court can enter a temporary restraining order within hours of filing when the plaintiff presents sworn evidence of irreparable harm. Federal courts in the Northern District of Texas (Dallas), Southern District of Texas (Houston), and Western District of Texas (Austin) can issue preliminary injunctions under Federal Rule of Civil Procedure 65 to stop active advertising campaigns, pull product packaging from circulation, or compel a social media platform to remove unauthorized content. Courts weigh 4 factors before granting preliminary relief, including the likelihood of success on the merits, the balance of hardships between the parties, the threat of irreparable injury, and whether the public interest supports an injunction. An attorney seeking injunctive relief will file alongside a motion for expedited discovery to preserve evidence before the defendant has the opportunity to alter or destroy records.

How Can I Protect My Image or Name from Misuse?

Protecting an image or name from misuse starts before any dispute arises. The 5 steps below address both prevention and early response.

Step 1. Require Written Consent Agreements. Any photographer, business, advertiser, production company, or media outlet that wants to use your name or image must sign a written release that identifies the specific uses, platforms, geographic regions, and duration of the authorization. Verbal permission creates evidentiary problems if a dispute arises later.

Step 2. Document the Commercial Value of Your Identity. Keep records of every licensing deal, paid sponsorship, endorsement agreement, and brand partnership you enter. These records establish the fair market value of your identity and directly support a damages calculation if an unauthorized use occurs.

Step 3. Monitor Digital Platforms Regularly. Conduct reverse image searches through Google Images and TinEye at least quarterly. Search your name across major advertising platforms including Meta Ad Library and Google Display Network to identify whether your image has appeared in paid campaigns without authorization.

Step 4. Act Before the Statute of Limitations Expires. Texas Civil Practice and Remedies Code Section 16.003 sets a 2 year statute of limitations for personal injury and privacy tort claims. The 2 year clock typically begins when the plaintiff discovers the unauthorized use, not when the use first occurred. Delay beyond that period bars the claim entirely regardless of its merit.

Step 5. Consult an Attorney Before Responding. Contacting the defendant directly before speaking with an attorney can compromise the claim. An attorney will send a formal cease and desist demand, issue an evidence preservation notice to prevent document destruction, and evaluate whether litigation, arbitration, or a licensing settlement best serves the plaintiff's interests.

When Should I Contact a Lawyer for Identity Misuse?

Contact a lawyer for identity misuse as soon as the unauthorized use is discovered, not after attempting to resolve the matter independently. Evidence in digital advertising campaigns disappears quickly once a company receives notice of a dispute. An attorney will issue a litigation hold letter requiring the defendant to preserve all records related to the campaign, including contracts, creative briefs, publishing records, revenue data, and internal communications. Under the 2 year limitation period of Texas Civil Practice and Remedies Code Section 16.003, a plaintiff who waits loses all legal options no matter how strong the facts are. An attorney reviewing an appropriation claim will also assess whether additional theories apply, including false endorsement under the Lanham Act, intentional infliction of emotional distress under Texas common law, or violations of the Texas Deceptive Trade Practices Act, Section 17.46, Business and Commerce Code, when the unauthorized use deceived consumers about an endorsement relationship.

Can a Personal Injury Attorney Handle Appropriation of Name or Likeness Cases?

A personal injury attorney can handle appropriation of name or likeness cases, particularly when the claim involves emotional distress, reputational harm, and identity based damages that parallel the damages frameworks used in traditional personal injury litigation. Privacy torts share procedural rules with personal injury claims in Texas, including the same 2 year statute of limitations under Section 16.003, the same discovery rules under the Texas Rules of Civil Procedure, and the same punitive damages standards under Section 41.003. Cases that involve primarily emotional and reputational harm rather than complex intellectual property licensing disputes are well suited for a personal injury attorney who regularly handles tort claims. Cases involving high value celebrity right of publicity claims, federal Lanham Act false endorsement theories, or multistate commercial campaigns may benefit from an attorney with additional experience in intellectual property and commercial litigation. A personal injury attorney will assess the facts, identify all applicable theories, and advise on whether the case should be filed in Texas state court or in the federal courts of the Northern, Southern, Eastern, or Western Districts of Texas.