“The ‘appropriation’ tort is essentially concerned with protecting a proprietary interest. It is often referred to as the ‘right of publicity.’ The elements of the common law tort are ‘(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.'”
“The First Amendment protects significant ‘transformative’ elements in depictions of celebrities—e.g., when through parody or other distortion, the depiction becomes primarily defendant’s own expression rather than the celebrity’s likeness. In such cases, constitutional ‘free speech’ rights trump plaintiff’s right of publicity and claims for misappropriation of plaintiff’s likeness.”
“The statute of limitations on a common law ‘appropriation’ claim is two years. Unless subject to the ‘single publication rule,’ the claim does not accrue until plaintiff discovers or reasonably should have discovered the factual basis for the claim.”
[California Practice Guide: Civil Procedure Before Trail Claims & Defenses [citations to primary sources omitted]]
