13. If the actor sues Vineyard to recover damages as a result of Vineyard's use of the photograph, will the actor prevail?

Under a theory of invasion of privacy, a plaintiff can recover for four types of wrongs: (i) appropriation by the defendant of the plaintiff's picture or name for commercial advantage; (ii) intrusion by the defendant upon the plaintiff's affairs or seclusion; (iii) publication by the defendant of facts placing the plaintiff in a false light; and (iv) public disclosure by the defendant of private facts about the plaintiff. To make a prima facie case for appropriation, a plaintiff must prove that the defendant made unauthorized use of the plaintiff's picture or name for commercial advantage.

C is correct. The actor will recover against Vineyard due to the company's unauthorized commercial use of his photograph. Although the actor permitted the photographer to take his picture for personal use, he did not consent to Vineyard's use of his photo for advertisements. The advertisements are an unlicensed use of his image for commercial purposes. Consequently, the actor will be able to recover against Vineyard on an invasion of privacy claim.

A is incorrect. The actor's consent to be photographed by the amateur photographer would not absolve Vineyard of liability, because the basis for Vineyard's liability is for its unlicensed use of the actor's likeness to sell wine. The actor's consent might be relevant to the photographer's liability, but it has no bearing on Vineyard's liability.

B is incorrect. The actor's status as a public figure does not cut short Vineyard's liability. Some invasion of privacy claims (e.g., public disclosure of private facts) may be limited because of a plaintiff's status as a celebrity. Here, however, the actor's claim is based on the unapproved appropriation of his likeness for commercial advantage. His celebrity bolsters the claim because it makes his name and likeness more valuable and consequently, easier to protect through an invasion of privacy claim.

D is incorrect. The actor would be able to recover against Vineyard regardless of whether or not he actually enjoyed its wine. Although the actor's enjoyment of the wine would make the caption accompanying the advertisement true, Vineyard's liability is based not on falsely representing that the actor enjoyed its wine, but rather using his likeness without permission or paying a licensing fee.