Utah

Utah recognizes a right to prevent the appropriation of one’s name or likeness under a common law privacy-based action. The state also provides a civil and criminal cause of action when a person’s identity is used in an advertisement, but only when the use suggests approval or endorsement.

Statute 

YES

Utah provides both civil and criminal penalties for publishing an advertisement in which the personal identity of an “individual is used in a manner which expresses or implies” approval or endorsement.

Utah Code § 45-3-1 et seq.

Utah Code § 76-9-407

Common Law - Right of Publicity 

UNCLEAR

At least one federal court has held that Utah has a common law right of publicity and that it is not preempted by the state’s Abuse of Personal Identity Act. The statute expressly states that it does “not limit or supersede any causes of action otherwise available to the parties.” This provision, however, has not yet been interpreted by state courts in the context of deciding whether a common law right of publicity exists.

Nature’s Way Prods. v. Nature-Pharma, Inc., 736 F. Supp.245 (D. Utah 1990)

Utah Code § 45-3-6

Common Law - Right of Privacy-Appropriation Tort 

YES

Utah recognizes a right to privacy, and the appropriation branch of the tort.  It has adopted the Restatement (Second) of Torts articulation of the claim. Lower courts have specifically explained that to make a claim under Utah law a plaintiff must establish three elements: (1) appropriation; (2) of another’s name or likeness that has some “intrinsic value”; (3) for the use or benefit of the defendant.

Cox v. Hatch, 761 P.2d 556 (Utah 1988)

Post-Mortem Right 

UNCLEAR

At least one federal court has held that Utah’s common law right of publicity would survive death.  The current statute, however, does not provide protection for post-mortem rights, although earlier versions of the statute did.

Nature’s Way Prods. v. Nature-Pharma, Inc., 736 F. Supp.245 (D. Utah 1990)

Utah Code § 45-3-1 et seq.

Repealed Utah Law from 1909

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

LIKELY YES

Under the common law action, the Utah Supreme Court has expressly required plaintiffs’ identities to have some kind of “intrinsic value.”

Cox v. Hatch, 761 P.2d 556 (Utah 1988)

Does the law protect persona?

LIKELY NO

A Utah appellate court rejected a privacy-based appropriation claim when the plaintiff was referred to, but neither her name nor likeness was used. The statute expressly defines “personal identity” as limited to the use of a person’s “name, title, picture or portrait.”

Stein v. Marriott Ownership Resorts, Inc., 944 P.2d 374 (Utah Ct. App. 1997)

Utah Code § 45-3-2(6)

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

NO

The Utah Supreme Court has expressly held that both the statutory right to protect one’s identity and the common law appropriation tort are not limited to commercial speech, even though the statutory right is limited to the advertising context.

Cox v. Hatch, 761 P.2d 556 (Utah 1988)

Utah Code § 45-3-2(1)

Statutory Defenses 

The statute does not contain exceptions.

First Amendment Analysis 

The Utah Supreme Court has considered a First Amendment defense to both its appropriation privacy-based tort and its right of publicity statute and concluded that the First Amendment prohibits liability for the use of photographs taken in a public place with public officials or candidates. Utah sits in the Tenth Circuit Court of Appeals, which has applied a balancing test to determining the scope of the First Amendment defense in the context of right of publicity claims.

Cox v. Hatch, 761 P.2d 556 (Utah 1988)

Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996) (considering Oklahoma statutory right of publicity)

Other Commentary 
  • Utah has also recognized the incidental use exception to appropriation and statutory claims
    Cox v. Hatch, 761 P.2d 556 (Utah 1988)
  • The Abuse of Personal Identity Act provides for publisher liability if a “reasonable person would conclude that it is unlikely than an individual” would have consented to the use.
    Utah Code §45-3-5
  • The criminal penalty requires an apology or retraction after a conviction.
    Utah Code § 76-9-407
Page last updated on: December 14, 2017

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