PJC Business 2024

PJC 110.18

D EFAMATION , B USINESS D ISPARAGEMENT & I NVASION OF P RIVACY

PJC 110.18 Question and Instruction on Invasion of Privacy by Misappropriation QUESTION ______ Did Don Davis misappropriate Paul Payne ’s name or likeness? “Misappropriate” means— 1. Don Davis made an unauthorized use of Paul Payne ’s name or like ness for the value associated with it;

2. Paul Payne can be identified from the use; and 3. there was some advantage or benefit to Don Davis . Answer “Yes” or “No.” Answer: _______________

COMMENT When to use. PJC 110.18 submits the liability of the defendant for the unautho rized use of the plaintiff’s name or likeness for the defendant’s advantage. Texas courts and courts applying Texas law have recognized this cause of action. See, e.g., Watson v. Talia Heights, LLC , 566 S.W.3d 326, 329–30 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Express One International, Inc. v. Steinbeck , 53 S.W.3d 895, 900 (Tex. App.—Dallas 2001, no pet.); Matthews v. Wozencraft , 15 F.3d 432, 437 (5th Cir. 1994); Benavidez v. Anheuser Busch, Inc. , 873 F.2d 102, 104 (5th Cir. 1989); Kim brough v. Coca-Cola/USA , 521 S.W.2d 719, 722 (Tex. App.—Eastland 1975, writ ref’d n.r.e.). The supreme court discussed the cause of action but did not expressly adopt it in Cain v. Hearst Corp. , 878 S.W.2d 577, 578 n.2 (Tex. 1994). Source of instruction. The definition of “misappropriate” is based on Express One International, Inc. , 53 S.W.3d at 900. The definition also requires the plaintiff to prove the use was unauthorized, based on Kimbrough , 521 S.W.2d at 722 (describing the tort as “a cause of action for the unauthorized appropriation or exploitation of his name or likeness by the defendants” (emphasis added)). Citing the Restatement (Second) of Torts § 652C (1977), some courts interpreting Texas law describe the cause of action differently. See Matthews , 15 F.3d at 437; Benavidez , 873 F.2d at 104; Faloona v. Hustler Magazine, Inc. , 607 F. Supp. 1341, 1360 (N.D. Tex. 1985), aff’d , 799 F.2d 1000 (5th Cir. 1986).

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