New Hampshire

New Hampshire does not have a right of publicity statute. The state recognizes the invasion of privacy, and treats the tort of appropriation of name or likeness as a right of publicity. 

Statute 

NO

Common Law - Right of Publicity 

MAYBE

Federal courts have treated New Hampshire’s appropriation tort as a “right of publicity.” 

Doe v. Friendfinder Network, Inc., 540 F.Supp 2d 288 (D.N.H. 2008)

Common Law - Right of Privacy-Appropriation Tort 

YES

The state recognizes both a right to privacy and the appropriation branch of that tort as articulated by the Restatement (Second) of Torts § 652. 

Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003) 

Thompson v. C & C Research and Development LLC, 898 A.2d 495 (N.H. 2006)

Post-Mortem Right 

No case has directly considered the issue. However, at least one court considered (though ulitimately rejected on other grounds) an appropriation claim arising out of the use of a deceased person’s identity. 

Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003)

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

LIKELY NOT 

New Hampshire follows the Restatement (Second) of Torts which does not require that the person’s identity to uniquely have value.  Several New Hampshire courts, however, have suggested that the use of the person’s identity must be for its value.  One federal court has allowed a right of publicity claim to proceed under New Hampshire law with a plaintiff who lacks any unique commercial value. 

Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003) 

Doe v. Friendfinder Network, Inc., 540 F.Supp 2d 288 (D.N.H. 2008)

Does the law protect persona?

MAYBE 

No court has addressed the question directly, but several courts have allowed for the possibility that right of publicity/appropriation claims could proceed on the basis of information that identifies a person, even if that information is not the use of a person’s name or likeness. 

Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003) 

Doe v. Friendfinder Network, Inc., 540 F.Supp 2d 288 (D.N.H. 2008)

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

NO 

No case has explicitly considered the issue, though the New Hampshire Supreme Court has noted that claims will most often arise in the context of commercial advertising. 

Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003)

Other Commentary 
  • The New Hampshire Supreme Court has held that breach of an endorsement contract does not give rise to an appropriation claim for the continued use of a person’s name and likeness.

Thompson v. C & C Research and Development, LLC., 898 A.2d 495 (N.H. 2006)

  • In 2011 and 2012, New Hampshire considered a right of publicity statute.  The bill was passed by the state legislature, but it was vetoed by the state's Governor who expressed concern that the law would violate the First Amendment and "inhibit constituitonally protected speech." 

Media Coalition Traces the History of New Hampshire Senate Bill 175

 

Page last updated on: September 27, 2015

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