Minnesota

Minnesota recognizes the common law tort of invasion of privacy for the misappropriation of name or likeness. Federal courts have decided that Minnesota also would recognize a distinct right of publicity at common law. 

Statute 

NO

Common Law - Right of Publicity 

YES

Federal courts have held that Minnesota would recognize a right of publicity.

Ventura v. Titan Sports, Inc., 65 F.3d 725 (8th Cir. 1995)

Common Law - Right of Privacy-Appropriation Tort 

YES

Minnesota recognizes a right to privacy, including the tort of appropriation for the unauthorized use of another’s name or likeness for the defendant’s own benefit.

Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998)

Post-Mortem Right 

MAYBE

A district court in Minnesota has held that the right of publicity is descendible in a case that is still pending. Paisley Park Enters. v. Boxill, 299 F. Supp.3d 1074 (D. Minn. 2017)

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

LIKELY NOT

Although early cases suggested that there might be a requirement of celebrity status for a property-like right of publicity claim, after the Minnesota Supreme Court’s decision in Lake v. Wal-Mart Stores, Inc., it is likely that a claim can be brought regardless of the commercial value of the appropriated identity.

Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998)

Does the law protect persona?

LIKELY YES

Federal courts have read Minnesota’s common law right of publicity to include characters played by plaintiffs and nicknames.

McFarland v. E & K. Corp., 1991 WL 13728 (D. Minn. 1991)

Faegre & Benson, LLP v. Purdy, 367 F.Supp.2d 1238 (D. Minn. 2005)

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

NO

No state or federal court has so limited either the tort of appropriation or the right of publicity.  In the context of the appropriation tort, the Minnesota Supreme Court stated that there is a claim if a defendant receives “any benefit.”

Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998)

Dryer v. National Football League, 55 F. Supp.3d 1181 (D. Minn. 2014)

First Amendment Analysis 

Federal courts in Minnesota have allowed First Amendment defenses to limit the scope of Minnesota’s rights of publicity and privacy. Minnesota sits in the Eighth Circuit which has adopted a balancing test to weigh free speech concerns against the interests of publicity holders.  In C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 503 F.3d 818 (8th Cir. 2007), the circuit held that fantasy sports leagues’ use of baseball players’ names and statistics is protected by the First Amendment.

C.B.C. Distrib. & Mktg v. MLB Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007)

 

Other Commentary 

The Eighth Circuit has held that right of publicity claims are preempted by copyright law, at least in the context of the use of copyrighted football game footage when the plaintiffs had agreed to appear in the original televised games and the defendant owned the rights to the footage and the use was in noncommercial speech.

Dryer v. National Football League, 814 F.3d 938 (8th Cir. 2016)

Federal Courts have held that misappropriation claims under Minnesota law are preempted by the Communications Decency Act § 230.

Faegre & Benson, LLP v. Purdy, 367 F.Supp.2d 1238 (D. Minn. 2005)

Page last updated on: November 02, 2018

The Book

Privacy Reimagined For A Public World

THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World

This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.

Now Available

Available at Amazon Buy Now At Barnes & Noble

Also available at Target and Walmart