
Wisconsin protects the right of publicity both by statute and common law.
YES.
Courts have treated the misappropriation tort akin to a “right of publicity.”
Hirsch v. S.C. Johnson & Son, Inc., 90 Wis.2d 379 (1979)
YES
Wisconsin has recognized the appropriation tort at common law, but has declined to recognize other forms of a right to privacy at common law. Those other branches of privacy are covered by the state’s privacy statute.
Hirsch v. S.C. Johnson & Son, Inc., 90 Wis.2d 379 (1979)
NO.
At least one court has held that the statutory right is not descendible and the statute expressly limits actions to the living.
Wis. Stat. § 995.50 Right of Privacy
Heinz v. Frank Lloyd Wright Foundation, 229 U.S.P.Q. 201 (W.D. Wis. 1986)
The privacy statute expressly states that it must be interpreted with “due regard for maintaining freedom of communication, privately and through the public media.” The Seventh Circuit and state courts have interpreted the statute as being limited by newsworthiness and incidental use defenses.
Newspapers, Inc. v. Breier, 89 Wis.2d 417 (1979)
Bogie v. Rosenberg, 705 F.3d 603 (7th Cir. 2013)
Wisconsin sits in the Seventh Circuit which has applied Wisconsin law and suggested that the state’s newsworthiness and public interest exception to its privacy laws is rooted in First Amendment guarantees. The Seventh Circuit has also had occasion under other state right of publicity laws to consider the interplay with the First Amendment, concluding that magazines can publish images from the public domain, but may be limited in publishing images without permission that negatively impact the commercial value of a plaintiff and that were not yet published.
Stayart v. Google, Inc., 710 F.3d 719 (7th Cir. 2013)
Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985) (applying Illinois law)
Hirsch v. S.C. Johnson & Son, Inc., 90 Wis.2d 379 (1979)
Habush v. Cannon, 828 N.W.2d 876 (Wis. Ct. App. 2013)
Stayart v. Yahoo!, 651 F. Supp.2d 873 (E.D. Wis. 2009)
Judith Endejan, Comment, The Tort of Misappropriation of Name or Likeness Under Wisconsin’s New Privacy Law, 1978 Wis. L. Rev. 1029.