North Carolina

North Carolina recognizes the privacy-based appropriation tort, but has not recognized a distinct right of publicity. 

Statute 

NO

Common Law - Right of Publicity 

NO

Common Law - Right of Privacy-Appropriation Tort 

YES

The state recognizes a privacy-based tort for the unauthorized appropriation of a person’s name or likeness either “in connection with an advertisement or commercial enterprise,” or, more broadly, for the defendant’s advantage.

Hall v. Post, 372 S.E. 711 (N.C. 1988)

Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938)

Hien Nguyen v. Taylor, 723 S.E. 2d 551 (N.C. Ct. App. 2012)

Barr v. Southern Bell Tel., 185 S.E.2d 714 (N.C. Ct. App. 1972)

Post-Mortem Right 

No court has considered the question.

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

NO

No court has required a showing of a commercial value, and appellate courts in the state have allowed claims by plaintiffs who do not have an independent commercial value in their identities.

Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938)

Hien Nguyen v. Taylor, 723 S.E. 2d 551 (N.C. Ct. App. 2012)

Does the law protect persona?

No court has considered the issue.

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

NO

The North Carolina Supreme Court has allowed a claim against a newspaper and has used the Restatement (Second) of Tort’s broader articulation of the appropriation tort as being a use for the defendant’s “advantage,” regardless of commerciality.  Although the state supreme court early on stated that the appropriation tort arises in the context of “advertising” or in connection with a “commercial enterprise,”  these limits exceed the boundaries of commercial speech.   One North Carolina appellate courts allowed claims arising out of a use in documentary, as a bonus feature in the DVD edition.

Hall v. Post, 372 S.E. 711 (N.C. 1988)

Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938)

Hien Nguyen v. Taylor, 723 S.E. 2d 551 (N.C. Ct. App. 2012)

First Amendment Analysis 

The North Carolina Supreme Court has allowed a misappropriation claim to proceed against a newspaper for publishing an advertisement, despite the Court’s recognition of the protected status of news. The state supreme court rejected the existence of a privacy-based tort of publication of private facts because of First Amendment concerns. 

Hall v. Post, 372 S.E. 711 (N.C. 1988)

Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938)

Other Commentary 

In 2009, North Carolina considered a bill that would add a post-mortem right, but the bill did not pass.

Proposed House Bill No. 327

Page last updated on: September 24, 2015

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