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Plaintiff Identification in the “Persona Torts”: What Defamation Law Can Offer the Right of Publicity and Related Claims
Communication Law and Policy  (IF),  Pub Date : 2018-10-02, DOI: 10.1080/10811680.2018.1516438
Matthew D. Bunker, Emily Erickson

Courts applying the persona torts – right of publicity, appropriation and false endorsement claims under the Lanham Act – often lack a precise methodology for determining whether a plaintiff has been depicted or identified. A number of courts have accepted the ambiguous notion that a defendant need only appropriate a plaintiff’s “identity.” Moreover, these courts apply an essentially impressionistic approach to whether that appropriation has occurred. This article, drawing from defamation doctrine, synthesizes a more nuanced and rigorous approach to the depiction question – an approach that also better safeguards important First Amendment values.