Montana

Montana recognizes a right to privacy and a privacy-based tort for the unauthorized use of a person’s name or likeness. Montana does not currently recognize a distinct right of publicity. 

Statute 

NO

Common Law - Right of Publicity 

NO

Common Law - Right of Privacy-Appropriation Tort 

YES

Montana recognizes a right to privacy and a cause of action for the unauthorized use of a person’s name or likeness for “advertising purposes,” and likely in other contexts as well.

Welsh v. Pritchard, 241 P.2d 816 (Mont. 1952)

Gilham v. Burlington N., Inc., 514 F.2d 660 (9th Cir. 1975)

Post-Mortem Right 

Montana courts have not yet considered the existence of post-mortem rights.

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

NO

While the courts have not expressly addressed this issue, the Ninth Circuit in Gilham allowed a misappropriation claim even though the plaintiff did not have a commercially valuable identity.

Gilham v. Burlington N., Inc., 514 F.2d 660 (9th Cir. 1975). 

Does the law protect persona?

Montana courts have not considered this issue.

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

UNCLEAR

So far, the tort is referred to as arising in the context of advertising, but it is not clear that it is so limited.  

Welsh v. Pritchard, 241 P.2d 816 (Mont. 1952)

Gilham v. Burlington N., Inc., 514 F.2d 660 (9th Cir. 1975). 

First Amendment Analysis 

Montana courts have not considered the role of the First Amendment in limiting the appropriation tort, but Montana falls within the jurisdiction of the Ninth Circuit Court of Appeals. The Ninth Circuit has had occasion to consider the interaction between the First Amendment and the right of publicity under California law, and has adopted a variety of tests for doing so, including California’s transformative use 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: September 24, 2015

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