15. Will the cigarette maker's motion to dismiss the complaint be granted?

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 needs to prove that the defendant made unauthorized use of the plaintiff's picture or name for commercial advantage. A plaintiff may bring an appropriation claim and prevail even if his image is not explicitly used or if he is unnamed, so long as it is sufficiently clear that the advertisement at issue intended to depict that individual.

A is correct. The cigarette company's motion to dismiss would not be granted because there was sufficient indicia of the driver's identity to support a verdict of liability. Although the driver's picture was not used by the cigarette company, nor was he named, because of the recreation of his distinctive vehicle coupled with the image of the helmeted driver, it was apparent that the advertisement was intended to depict the driver. Further, the driver was not compensated for this use of his likeness, which the company used for commercial advantage to sell cigarettes. To this end, the driver would likely recover on a breach of privacy claim against the cigarette company based on misappropriation of his image for commercial use.

B is incorrect. The cigarette company's motion will likely be denied on the basis that the race-car driver was a public figure. Although celebrity status can weaken some invasion of privacy claims, such as publication of private facts, it is not in itself a bar to recovery and thus not a basis for dismissing a claim. Further, to the extent that the driver's fame is relevant, it would actually strengthen his claim. Celebrity status means that the driver's likeness has a commercial value that cannot be exploited without permission or payment of a licensing fee.

C is incorrect. The cigarette company's advertisement did not need to explicitly identify the driver. A plaintiff can prevail on an invasion of privacy claim for misappropriation of likeness even if his face is not shown or he is unnamed, so long as it is sufficiently clear that the advertisement intended to depict that individual. Under the facts here, while the driver himself was not shown, a figure who closely resembled the famous race-car driver was. The figure was accompanied by a vehicle almost identical to the driver's distinctive car. To this end, because the driver could and would likely prevail on the merits, a court would deny the cigarette company's request for a motion to dismiss.

D is incorrect. To prevail on a claim for misappropriation of likeness, a plaintiff only needs to prove that his image was used for commercial use without permission or compensation. Further, a plaintiff can prevail even if they are not explicitly identified. No showing of emotional distress or dignitary loss is necessary. Thus, the court would not dismiss the driver's case due to a lack of emotional distress or dignity loss.