West Virginia

West Virginia has recognized a right to privacy and the appropriation branch of that tort.  At least one federal court has held that the state also would recognize a distinct right of publicity, and others have presumed this to be the case.

Statute 

NO.

Common Law - Right of Publicity 

YES.

Federal courts have held that West Virginia would recognize a right of publicity and the West Virginia Supreme Court has acknowledged that such a right contrasts with the privacy-based appropriation tort.

Curran v. Amazon.com, 86 U.S.P.Q.2d 1784 (S.D. W. Va. 2008)

Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (1983)

Common Law - Right of Privacy-Appropriation Tort 

YES

West Virginia has adopted Prosser’s four privacy torts, including a tort for the “appropriation of another’s name or likeness.”  The West Virginia Supreme Court has distinguished this tort from the “right of publicity” which it deems to focus on the harm of unjust enrichment, rather than the emotional harm that stems from appropriation under the privacy rubric.

Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (1983)

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?

UNCLEAR

The West Virginia Supreme Court has allowed private figures to bring appropriation claims.  Several federal district courts, however, have suggested that only celebrities, public figures, or soldiers could bring right of publicity claims under West Virginia law.  And one district court suggested that plaintiffs may also need to establish some commercially valuable reputation or prestige to bring an appropriation-based privacy claim. These federal interpretations of West Virginia law are likely erroneous, but to date no West Virginia court has commented on these decisions.

Spears v. Cable News Network, CNN, No. 1:18-CV-162, 2019 WL 3752921 (N.D.W. Va. Aug. 8, 2019)

Curran v. Amazon.com, 86 U.S.P.Q.2d 1784 (S.D. W. Va. 2008)

Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (W. Va. 1983)

Does the law protect persona?

UNCLEAR

No court has addressed this.

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

NO

The West Virginia Supreme Court has expressly held that the privacy-based appropriation tort applies to “noncommercial” uses.

Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (1983)

First Amendment Analysis 

The West Virginia Supreme Court has recognized that the tort of appropriation is limited by the First Amendment and has specifically recognized defenses for newsworthiness and incidental uses.

Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (1983)

Curran v. Amazon.com, 86 U.S.P.Q.2d 1784 (S.D. W. Va. 2008)

Page last updated on: June 23, 2020

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