Gaspar Llamazares of the Spanish United Left party has an interesting claim of appropriation of name or likeness against the FBI. When the FBI was trying to come up with a picture of an aging Osama Bin Laden, they reportedly decided the easiest thing to do was to use Llamazares’ picture as the basis for the widely distributed poster.
I find it a bit unnerving that our forensic artists and investigators have to lift pictures from the Spanish parliament to come up with aged images.
Llamazares says that he no longer feels comfortable traveling with the image shown in every country and airport in the world. That would leave only caves along the Pakistani-Afghan border as a refuge.
The FBI issued a statement that “The forensic artist was unable to find suitable features among the reference photographs and obtained those features, in part, from a photograph he found on the Internet.” Frankly, that sounds pretty moronic to use a picture — particularly when it remains so easily identifiable with the original.
Llamazares’ photo is now part of the global campaign on the U.S. State Department Web site rewardsforjustice.net offering a reward of up to $25 million for bin Laden.
Both the politician and Bin Laden are 52 with similar facial features, but that is where the similarities end.
Putting aside negligence, this would make for an interesting misappropriation tort (particularly given the status of the plaintiffs as a celebrity). Here is the standard from the Second Restatement:
652C Appropriation of Name or Likeness
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.
a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.
b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff’s name or likeness to advertise the defendant’s business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff’s name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.
Is this for a commercial purpose. Some courts have allowed a more liberal definition of such usage to allow for recovery. Moreover, the changing in the appearance may not be a barrier. After all, Vanna White was able to recover for the use of a robotic with a wig that turned letters in a Samsung commercial, here.