Right to Publicity, Misappropriation of Name

Missouri recognizes an individual’s ability to sue for either violating one’s right to publicity or misappropriating one’s name.

A misappropriation of name lawsuit protects the “interest of the individual in the exclusive use of his own identity, in s far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or others.” Doe v. TCI Cablevision 110 S.W.3d 363, 368 (Mo. 2003). The measure of damages is “not only pecuniary loss, but also…mental or emotional distress and suffering” Id.

A right to publicity action, on the other hand, “protect[s] a person from losing the benefit of [his or her] work in creating a publicly recognizable persona.” Id. The measure of damages is either the pecuniary loss to the plaintiff or the unjust pecuniary gain to the defendant. Id.

Depending on the nature of the case, free speech rights may be implicated in the analysis. In such circumstances, “courts will often weigh the state’s interest in protecting a plaintiff’s property right to the commercial value of his or her name and identity against the defendant’s right to free speech.” Id.at 372.