North Dakota has not explicitly recognized a right to privacy or a right of publicity, but has suggested the possibility that a privacy-based appropriation tort might be recognized.
The state has thus far refused to either accept or reject a common law right to privacy.
Hougum v. Valley Memorial Homes, 574 N.W.2d 812 (N.D. 1998)
American Mut. Life Ins. v. Jordan, 315 N.W.2d 290 (N.D. 1982)
Volk v. Auto-Dine Corp., 177 N.W.2d 525 (N.D. 1970)
Nelson v. J.C. Penney Co., Inc., 75 F.3d 343 (8th Cir. 1996)
No court has considered the issue.
Although no court has analyzed the First Amendment in the context of a misappropriation tort under North Dakota law, North Dakota sits in the Eighth Circuit Court of Appeals. In C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 503 F.3d 818 (8th Cir. 2007), the Eight Circuit held that the use of players’ names and statistics by a fantasy sports league was protected by the First Amendment against a claim under Missouri’s right of publicity.
C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007)