Missouri

Missouri recognizes both a right of publicity, and a distinct privacy-based tort of appropriation.

Statute 

NO

Common Law - Right of Publicity 

YES

Missouri has long recognized under the rubric of “privacy,” a property right in one’s image and the right to control its use.  To establish a violation of the right of publicity a plaintiff must establish that: (1) the defendant used the plaintiff’s identity; (2) without consent; and (3) “with the intent to obtain a commercial advantage.”

Common Law - Right of Privacy-Appropriation Tort 

YES

Missouri has long recognized a right to privacy and the tort of appropriation of a plaintiff’s identity for a defendant’s advantage. Unlike the common law right of publicity, the misappropriation tort does not require that the defendant’s use be for commercial advantage.

Post-Mortem Right 

No court has considered this issue.

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

LIKELY NOT

The privacy-based appropriation tort does not require such a showing, but the right of publicity may turn, in part, on the plaintiff having a commercially valuable identity.  The Missouri Supreme Court, however, has declined to so hold.  Several appellate courts have nevertheless suggested that a right of publicity action requires that one be a celebrity, or otherwise have a commercially-valuable identity.

Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003)

Nemani v. St. Louis Univ., 33 S.W.3d 184 (Mo. 2000)  

Haith v. Model Cities Health Corp., 704 S.W.2d 684 (Mo. Ct. App. 1986)

Munden v. Harris, 134 S.W. 1076 (Mo. Ct. App. 1911)

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

Does the law protect persona?

LIKELY YES

The Missouri Supreme Court has allowed a claim arising out of a comic book character that did “not physically resemble” the plaintiff, because in context the variation on the plaintiff’s name caused a “correlation” or “connection” between the plaintiff and the character.  In another case, the state supreme court rejected a claim that a person’s horse identified that person.

Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003)

Bayer v. Ralston Purina Co., 484 S.W.2d 473 (Mo. 1972)

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

NO

The Missouri Supreme Court has applied the right of publicity in the context of noncommercial speech.  A right of publicity claim must be for the defendant’s “commercial advantage,” but this has been applied to expressive works, such as comic books.  The misappropriation claim does not require a commercial use of any sort.

Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003)

Nemani v. St. Louis Univ., 33 S.W.3d 184 (Mo. 2000)  

Haith v. Model Cities Health Corp., 704 S.W.2d 684 (Mo. Ct. App. 1986)

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

First Amendment Analysis 

Missouri recognizes exceptions from the common law right of privacy for the publication of newsworthy matters of public concern.   Missouri also has adopted a predominant use test to determine whether a use is protected by the First Amendment. The predominant use test considers whether a use “predominantly exploits the commercial value” of the person’s identity or instead predominantly makes an expressive comment about the person.  In contrast, the Eight Circuit Court of Appeals uses a balancing test to determine whether free speech interests outweigh the interests of the identity-holders. 

Other Commentary 

The Eighth Circuit has held that Missouri’s right of publicity is preempted by federal copyright law when the claim arises out of an authorized copyrighted work.

Ray v. ESPN, Inc., 783 F.3d 1140 (8th Cir. 2015)

Page last updated on: September 24, 2015

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