Idaho

Idaho has not recognized a right of publicity either by statute or at common law.  The state does recognize a right to privacy, including the tort of appropriation of name or likeness, but to date no published case has applied that tort.

Statute 

NO

Common Law - Right of Publicity 

NO

Common Law - Right of Privacy-Appropriation Tort 

YES

Hoskins v. Howard, 971 P.2d 1135 (Idaho 1998) 

Peterson v. Idaho First Nat'L Bank, 367 P.2d 284 (Idaho 1961).  

 

Post-Mortem Right 

No court to date has considered the issue. Of possible interest is Idaho's probate code that allows heirs to continue to use a decedent's email and social media accounts. Idaho Code § 15-3-715 (28)

Limits on Right 
Does the law protect persona?

Thus far, Idaho courts have only referred to the use of name or likeness as a basis for establishing the appropriation tort.

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

Under Idaho common law, the tort of invasion of privacy by appropriation extends to any appropriation to defendant’s own advantage. Hoskins v. Howard, 971 P.2d 1135 at 1140. 

First Amendment Analysis 

Under the common law tort for invasion of privacy, Idaho courts have recognized First Amendment protections, particularly for newsworthiness and matters of public interest. 

Uranga v. Federated Publications, Inc., 67 P.3d 29 (Idaho 2003)

Taylor v. K. T. V. B., Inc., 525 P.2d 984 (Idaho 1974) 

Idaho sits in the Federal Court of Appeals for the Ninth Circuit which has had occasion to consider the interaction between the First Amendment and the right of publicity under California law.  The Ninth Circuit has adopted a variety of tests for assessing the application of a First Amendment defense in such instances, including California’s transformativeness test, and a broader balancing approach. 

In re NCAA Student-Athlete Litigation, 724 F.3d 1268 (9th Cir. 2013) 

Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001) 

Page last updated on: July 19, 2019

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