How to Claim Appropriation of Name or Likeness

Appropriation of name or likeness is a type of invasion of privacy for which you can file a civil lawsuit in state or federal court. You can claim appropriation of name or likeness if someone uses a protected aspect of your identity – such as your voice or image – without your permission and gains some benefit as a result.^[1] If the court finds in your favor, you would be eligible for monetary damages to compensate for the damage to your privacy.

EditSteps

EditDrafting Your Complaint

1. Check your state's law. Each state has its own definition of appropriation, and breaks the claim into distinct elements you must prove.
   • Appropriation of name or likeness claims typically involve a media outlet or business owner using your name, photograph, or other identifying features of you for commercial gain without your consent.
   • Keep in mind that appropriation is a type of invasion of privacy. This means that in some states, celebrities – whether nationally or locally known – cannot sue for appropriation. Once a person's life becomes a matter of common public knowledge, those states don't recognize a right to privacy capable of being invaded.^[2]
   • If you uploaded images of yourself to a social media network or other website, read the terms and conditions of that site carefully to determine if your use of the network or website grants a license to use your images for certain purposes.^[3]
   • You also want to check your state's statute of limitations, which provides a deadline after which you aren't allowed to file a lawsuit. This deadline can be anywhere from one to six years after the first instance of appropriation.^[4]
2. Gather information. Apply facts about the incident that gave rise to your claim and the person you want to sue to your state's appropriation law.
   • For example, suppose the local grocery store used a photo of you eating a watermelon in its advertisements selling fresh produce – without asking your permission. That could be a case of appropriation because they are using the image of you (your face – a protected attribute) enjoying a delicious watermelon to entice others to buy their products (an exploitative purpose – advertising and commercial gain).
   • The protected attribute in question doesn't have to be your full legal name, or even your full face – but whatever was used must be sufficient to cause people who saw it to recognize or associate it with you.^[5]
   • However, in some states the types of attributes that may be protected are limited. For example, Massachusetts only protects your name, portrait, or picture, while New York also includes your voice and California also includes your signature.^[6]
   • Consent also can be difficult, and is one of the key defenses against a lawsuit for appropriation. You must be able to prove that you did not consent to the defendant's use of your name or likeness. If you signed a release form, the defendant's use can't have been included in that release.^[7]
   • For example, suppose the picture of you eating watermelon was taken at the county fair while you were participating in a watermelon-eating contest. You signed a release that gave the county fair permission to use any pictures taken during the contest to promote the contest. However, that release did not include permission for the grocery store to use it in advertisements. You would need to reference this release in your complaint and attach a copy of it as an exhibit.
3. Choose the correct court. You must file your complaint with a court that has jurisdiction over both your claim and the person you want to sue.
   • Civil courts have general jurisdiction over claims of appropriation of name or likeness – these are courts in which one private individual or business can sue another. The ability to sue someone for appropriation is created by state law, but in some instances you may need to file your claim in federal court.
   • A federal court has jurisdiction over your state-law appropriation claim if the person or business you're suing is located in a different state than the one where you live.^[8]
   • In addition to subject matter jurisdiction, the court also must have personal jurisdiction. This means the court must have the power to order the person you're suing to do something. Courts only have power over people who live or do business within the county or district where the court is located, or who commit the act that gave rise to your lawsuit in that county or district.
   • Jurisdiction generally refers to the type of court – state or federal, civil division – while venue refers to the location of the particular courthouse.^[9] For example, while your state's civil court may have jurisdiction over your case, there may be a state civil court in every county. The county you file your lawsuit in must have proper venue.
   • Typically a court has venue if you are suing in the location where the incident that gave rise to the claim happened.^[10]
   • If you have trouble distinguishing venue and personal jurisdiction, keep in mind that one district may have several different courts. While all those courts may have personal jurisdiction, venue may only be proper in one of them.
4. Consider consulting an attorney. Because appropriation claims can be difficult and the law can be complex, an attorney can help protect your interests and guide you through the process.
   • Generally, you want to find an attorney who is experienced in representing plaintiffs in invasion of privacy lawsuits. You can begin with an internet search, or check your local bar association's website to find an attorney near you.^[11]
   • Carefully choose an attorney based on the type of case you have, and make sure the attorney is experienced in representing people with claims just like yours. For example, if your lawsuit is against a media website, you would want to find an attorney who had experience in media law, copyright, and the First Amendment.
   • If you're concerned about the cost of hiring an attorney, you might check with your local legal aid society – although legal aid attorneys seldom represent plaintiffs.
   • When you interview prospective attorneys, be up front about your money concerns and find out what they're willing to do to help. They may be able to help you on a limited basis – for example by drafting court documents only – or work under a contingency fee agreement where you only pay the attorney if you win your case or accept a settlement.^[12]
5. Format your complaint. The court's local rules determine how a complaint must be formatted. You also may want to get complaints filed in the same court in other cases to use as templates.
   • Your local law library, typically located in the courthouse, has examples of complaints filed on various topics so you can find good ones to use.^[13]
   • If you're using other complaints as examples or templates, be careful to tailor your complaint to your case. Some of the information contained in the complaint for another case may be irrelevant or unnecessary for yours.^[14]
   • Some courts, including many federal courts, require you to use a special type of paper known as "pleading paper," in which the margins are pre-set and all the lines are numbered down the side. If your court requires pleading paper, you can find a template online to use. Many word processing applications also have a pleading paper template.^[15]
   • Generally, you must format and print your complaint on standard 8.5 x 11 white paper. Set one-inch margins all the way around and use a basic font such as Arial or Times New Roman in 12- or 14-point size.^[16][17]
   • Some courts also may require sub-headings for each section of your complaint. Review complaints filed in other cases in the same court to see if you need to follow this format.^[18]
6. Create your caption. The caption takes up roughly the top third of the first page, and identifies the case for the court.^[19][20]
   • The top of the left-hand portion of the caption identifies the court in which you've filed your lawsuit. Some courts prefer this information to be centered over the entire caption.^[21]
   • Typically, the left-hand portion of the caption is the title of the case – your name "vs." the defendant's name, with each party name taking a separate line above and below the "vs."^[22]
   • On the right-hand side of the caption, you'll leave a blank for the case or reference number of the lawsuit, which will be assigned by the clerk when you file your complaint.^[23]
   • In some courts, you must type the title of your document (here, "Complaint") under the space for the case number. In other courts, you must center your title directly over the body of your complaint.^[24]
7. Write your introduction. Your introduction states who you are and who you are suing, and explains how the court has jurisdiction over your case.
   • Above your first paragraph, you must title your document if the title was not included in the caption. Here, your title can be simply "Complaint." Local rules determine how your title must be styled. Often the word will be typed in all-caps, and bolded, underlined, or both.
   • Typically the introductory portion of your complaint constitutes the first numbered paragraphs of your complaint. Your complaint begins with a single sentence such as "Comes now the Plaintiff, [your name], and respectfully alleges as follows:" and then proceeds with numbered paragraphs.^[25]
   • Each numbered paragraph should include only a single fact. For example, the first paragraph should state your name, the state of which you are a resident, and your address. The second paragraph relates the same information about the person you are suing.^[26][27]
   • Paragraphs themselves should be single-spaced, with a double space between each numbered paragraph.^[28][29]
   • Following the paragraphs that identify you and the person you're suing, you should include a paragraph explaining how the court has jurisdiction over your case. The next paragraph addresses venue – why you're suing in this particular court location.^[30]
8. State your claim. To claim appropriation of name or likeness, you must state that the person you're suing used your name or likeness without your permission and gained a direct benefit as a result.
   • Continue with the same format as you started, providing each allegation in a separate numbered paragraph.^[31]
   • You will start by listing relevant facts, typically in chronological order, that make up the incident that gave rise to your claim. Then you'll set forth your claims – in other words, why those facts give you a reason to sue the person under the law.^[32]
   • Make sure you've included all elements your state law requires for a claim of appropriation of name or likeness. If you don't include facts for each element, the defendant will have a reason to file a motion asking the court to dismiss your case.
9. Write your prayer for relief. The conclusion of your complaint asks the court to provide you with the damages you seek and any other damages the judge thinks proper.
   • In a court document, "relief" refers to the solutions or remedies the court can provide.^[33] For appropriation of name or likeness, this relief may include monetary damages, but also may include an order for the defendant to stop using your name or likeness.
   • The prayer for relief typically ends with a statement requesting "any further relief which the court deems appropriate."^[34]
10. Create your signature block. You must sign your complaint and provide basic contact information.
    • Typically you'll leave at least four blank lines and then type a line for your signature. Directly under that line, type your name. Under your name, type your mailing address and phone number.^[35] You also can include your email address if you want the court or the defendant to be able to communicate with you in that way.

EditFiling Your Complaint

1. Sign your complaint. Some courts may require you to sign your complaint in front of a notary if you are filing your complaint yourself and don't have an attorney.
   • If required to sign in front of a notary, bring your documents along with a valid government-issued photo ID. The notary will check your ID and verify that you are the person signing the documents.
   • If you don't know where to find a notary, call the clerk's office and ask. There typically is a notary available at the courthouse, and many banks also have notary services available for their customers.
   • You must sign your complaint using blue or black ink. Some jurisdictions require blue ink, so check with the clerk if you're unsure or if the local rules don't specify.
2. Complete any other required forms. You typically will need a summons or certificate of service and may need other forms such as a cover sheet to accompany your complaint.^[36]
   • A summons tells the defendant he or she must appear in court to respond to your lawsuit, while a certificate of service tells the court that you've provided the defendant with a copy of the lawsuit and how it was delivered.
   • Any document you reference in your complaint must be attached. If you needed to attach any documents to your complaint, such as a copy of the statements published by the defendant, you should label them as exhibits. Assign each exhibit a letter, starting with the letter "A" and continuing through the alphabet.^[37]
3. Take your paperwork to the clerk's office. You will initiate your lawsuit by filing your complaint and any related documents with the clerk of the court you want to hear your case.
   • Before you file your paperwork, make copies of the entire packet of documents you need to submit. You'll need at least one copy for the defendant and one for your own records.^[38] Some courts may require you to make additional copies – talk to the clerk to find out.
   • When you file your complaint, you must pay a filing fee, which typically will be several hundred dollars. If you can't afford this fee, you can fill out an application to have the fee waived. If your income and assets fall below a certain threshold, the court will waive the fees associated with filing the complaint or any other documents for the duration of the case.^[39]
4. Have the defendant served. The person you're suing must have proper written notice that you have filed a lawsuit against him or her.
   • Technically the complaint can be delivered to the defendant by any person over the age of 18 who is unrelated to the case. Typically you would get the sheriff's department or a private process serving company to do this for you for a small fee.^[40]
   • In some jurisdictions you also may be able to serve the defendant by sending the documents using certified mail with returned receipt requested. Typically, however, a complaint must be hand-delivered to the defendant by a person.
   • After the defendant has been served, you must make sure that whoever delivered the documents filled out and filed a proof of service document with the court. The clerk has forms available for this purpose.^[41]

5. Wait for a response. Once the defendant is served, he or she has a limited amount of time to file an answer to your lawsuit or you may be eligible to win by default.
   • The defendant has the opportunity to raise any and all defenses he or she may wish to use against you, as well as to assert any related counterclaims. If the defendant makes any counterclaims, you will have a deadline to file a response to those.

EditArguing Your Case

1. Participate in the discovery process. You and the defendant will exchange information about the case in preparation for trial.
   • Typically you must make any documents you intend to use as evidence, or witnesses you plan to call, available to the defendant for review. The defendant must do likewise.
   • The process may include written discovery – in which you exchange written questions or requests for production – as well as depositions, which are interviews with witnesses or parties to the case. These interviews are recorded and conducted under oath.^[42]
2. Consider using mediation. A mediator can help you settle your lawsuit without going through the time, stress, and expense of a trial.
   • A mediator is a neutral third party who facilitates a discussion between you and the defendant in the hopes of arriving at a mutually agreeable settlement. The proceedings are confidential and are less formal than trials.^[43]
   • Courts often have a list of mediators or mediation agencies that are approved by the court to conduct mediations.^[44]
   • Some jurisdictions may offer mediation services free of charge through the courts, while in others you'll have to pay the mediator a fee. However, keep in mind that the cost of mediation typically is substantially less than what you would pay to take your case to trial.^[45]
   • Some courts also may require you to attend a settlement conference, which is somewhat like mediation only it is held before the judge who will be trying your case.^[46]
3. Gather evidence. You will need documents or witnesses to prove the elements of your claim of appropriation.
   • When you prepare your documents and other evidence for your trial, include copies of any papers and exhibits you filed with the court.
   • You may want to make a rough timeline of the incident that gave rise to your claim, as well as a basic outline of the facts – the same facts you included in your complaint – along with any evidence that supports those facts.
   • If you're claiming emotional distress, a psychological professional who has treated you can offer beneficial testimony at trial to support your claim. You also might use close friends or family members who can testify to how upset you were by the incident, or who can describe how the appropriation disrupted your life.
   • You also must show that the defendant stood to gain from using your name or likeness specifically – that is, that he or she chose you because your image was more valuable than any other random person's would have been.^[47]
   • To return to the watermelon-eating contest example, if you won the watermelon-eating contest, and the grocery store subsequently used your picture to sell its produce, either claiming outright or insinuating that since you won the watermelon-eating contest you must know a thing or two about fresh produce and believed theirs was the best, this would demonstrate that your image had some special value beyond that of just anyone eating watermelon.
   • Your case would be even stronger in this instance if the county fair was a popular event and the winner of the watermelon-eating contest became well known around town.
4. Appear for your hearing. You must be in court on the date and time of your hearing or your claim will be dismissed.
   • You may want to consider attending a trial before the same judge before your hearing date, so you can gain some familiarity with how the judge runs his or her courtroom and the basic procedures that are followed.^[48]
   • Prepare for your hearing by re-reading all the law that applies to your case, and all the court documents that have been filed by you and the defendant. You'll also want to review any discovery, including documents and deposition transcripts.^[49]
   • If you plan to call witnesses to testify on your behalf, prepare questions and take time to rehearse with them so you know what their responses will be. You never want to ask a witness a question on the stand if you don't know how he or she will answer.^[50]
   • If you're bringing documents to present as evidence, make sure you have enough copies to provide one for the judge and one for the defendant.^[51]
   • Bring an outline of your case and notes so you don't miss anything important.^[52] You may want to practice your opening and closing statements in front of a mirror or for friends or family members until you're comfortable with what you plan to say.
5. Present your claim. As the plaintiff, you typically have the first opportunity to tell the judge about the incident that led to your lawsuit.
   • When the judge calls your name, you'll be asked to present your opening statement. This is when you provide the judge with a summary of your case and what you will prove through the evidence you present and the witnesses you call.^[53]
   • Speak clearly and loudly so the judge can hear you, and don't rush – you want the judge to be able to follow your words. If the judge asks you a question, stop speaking immediately and answer the judge's question before moving on.^[54]
   • Make sure you address only the judge (or a witness, if you're questioning someone) – don't speak to the defendant directly.^[55]
6. Listen to the other side. After you've presented your evidence, the person you've sued will have the opportunity to present his or her defense.
   • Pay attention and refrain from interrupting. Keep in mind that if the defendant calls any witnesses, you will have the opportunity to cross-examine them. Make a note of anything you want to bring up on cross-examination or about which you have further questions.^[56]
   • After the defendant presents his or her arguments, you both will have the opportunity to speak again by giving a closing statement. Just as in your opening statement you told the judge what you were going to prove, in your closing statement you tell the judge what you've proven.
7. Receive the judge's decision. The judge will issue his or her order after hearing both sides of the story and considering all evidence submitted.
   • Although the judge may issue a ruling from the bench, it may take a few days or even a few weeks to receive a written order.
   • If you disagree with the judge's order or believe the judge has made a legal mistake, you have a limited period of time to file a notice with the court indicating you plan to appeal – typically about 30 days after the judge's order is entered.^[57][58][59]

EditTips

• If you want a jury trial, you must request it when you file your complaint or shortly thereafter.^[60] Keep in mind that jury trials are considerably more complex and time-consuming, and avoid even contemplating a jury trial without first consulting an attorney.

EditWarnings

• Appropriation claims don't apply to use of your name or likeness for the purposes of reporting news or writing a commentary on public events or matters of public interest.^[61] For example, if a newspaper ran a story about the watermelon-eating contest and included your picture, this generally would not be considered appropriation.

EditSources and Citations

Cite error: <ref> tags exist, but no <references/> tag was found

source How to of the Day http://ift.tt/1JgB41o