Colorado

Colorado does not recognize a distinct right of publicity. The state does, however, recognize the invasion of privacy by appropriation. 

Statute 

NO

Common Law - Right of Publicity 

UNCLEAR 

The Tenth Circuit and other federal courts have suggested that the Colorado Supreme Court might adopt a separate right of publicity if faced with the question.

Donchez v. Coors Brewing Co., 392 F.3d 1211 (10th Cir. 2004)

PAM Media Inc. v. American Research Corp., 889 F. Supp. 1403 (D. Colo. 1995)

Common Law - Right of Privacy-Appropriation Tort 

YES

Joe Dickerson & Associates, LLC v. Dittmar, 34 P.3d 995, 1001 (Colo. 2001) 

Colorado Civil Jury Instructions 28:4. 

Post-Mortem Right 

To date no court has considered the issue.

Limits on Right 
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?

UNCLEAR.

The Colorado Supreme court has held that a plaintiff need not have a commercially valuable identity to recover for emotional harm caused by misappropriation. The court did not address whether plaintiffs seeking economic damages for appropriation of name or likeness would need to prove that their identity has commercial value. The Tenth Circuit Court of Appeals suggested that a plaintiff claiming economic damages for appropriation must have a persona with commercial value. 

Joe Dickerson & Associates, LLC v. Dittmar, 34 P.3d 995 (Colo. 2001) 

Donchez v. Coors Brewing Co., 392 F.3d 1211 (10th Cir. 2004) 

Does the law protect persona?

MAYBE 

No Colorado court has considered an appropriation claim beyond one involving “name or likeness.” However, the Tenth Circuit, applying Colorado state law, has suggested that persona is protected.

Donchez v. Coors Brewing Co., 392 F.3d 1211, 1220-21 (10th Cir. 2004)

Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?

NO.

No court has so limited the right under Colorado law, and the appropriation tort expressly permits actions when the use is for the defendant’s “own purposes or benefit, commercially or otherwise.”

First Amendment Analysis 

Colorado courts have accepted First Amendment defenses to the appropriation tort on the basis of uses being newsworthy and not in commercial speech.  Colorado also sits in the Tenth Circuit which has applied a balancing test to determining the scope of the First Amendment defense in the context of right of publicity claims. 

Joe Dickerson & Associates, LLC v. Dittmar, 34 P.3d 995 (Colo. 2001) 

Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996)

Page last updated on: September 01, 2015

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