
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.
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)
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)
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)
The statute does not contain exceptions.
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)
Cox v. Hatch, 761 P.2d 556 (Utah 1988)
Utah Code §45-3-5
Utah Code § 76-9-407