Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
LIKELY NO
Texas requires that a plaintiff’s name or likeness be used because of its value, but does not necessarily require that the person be a celebrity or that the person have an independently valuable public persona. The post-mortem statute requires that a person’s “name, voice, signature, photograph or likeness” have a commercial value either at the time of death or thereafter.
Express One Intern., Inc. v. Steinbeck, 53 S.W.3d 895 (Ct. App. Tex. 2001)
Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)
Tex. Prop. Code § 26.003
Does the law protect persona?
UNCLEAR
The post-mortem statute limits actions to uses of “name, voice, signature, photograph or likeness,” but the common law could sweep more broadly. Although no state court has broadened out liability beyond name or likeness, at least one federal court has suggested that any use that evokes a celebrity’s identity could give rise to liability. The Fifth Circuit, however, has concluded that the use of a person’s life story does not fit within the requirement of using a person’s name or likeness.
Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994)
Henley v. Dillard Dept. Stores, 46 F. Supp.2d 587 (N.D. Tex. 1999)
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
LIKELY NOT
Although Texas courts have adopted the Restatement formulation which expressly allows for liability beyond commercial speech, at least one federal court has held that the tort is limited to uses for “commercial purposes” which it defined as commercial speech, specifically excluding motion pictures from appropriation claims.
Whitehurst v. Showtime Networks, Inc., 2009 WL 3052663 (E.D. Tex. 2009)
O’Grady v. Twentieth Century Fox Film Corp., 2003 WL 24174616 (E.D. Tex. 2003)