North Carolina
North Carolina recognizes the privacy-based appropriation tort, but has not recognized a distinct right of publicity.
Statute
NO
North Carolina does, however, have a disclosure of private images law, N.C. Gen. Stat. Section 14-190.5A, that was enacted in 2015.
It prohibits the “knowing” disclosure of images of others without their affirmative consent and with an intent to “coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person,” or with the intent to cause others to do so. The claim is limited to the distribution of images that reveal a person’s intimate parts or which depict the person engaging in sexual conduct. The statute provides for actual damages, statutory damages, punitive damages, and attorneys fees, as well as criminal liability.
Common Law - Right of Publicity
NO
Common Law - Right of Privacy-Appropriation Tort
YES
The state recognizes a privacy-based tort for the unauthorized appropriation of a person’s name or likeness either “in connection with an advertisement or commercial enterprise,” or, more broadly, for the defendant’s advantage.
Hall v. Post, 372 S.E. 711 (N.C. 1988)
Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938)
Hien Nguyen v. Taylor, 723 S.E. 2d 551 (N.C. Ct. App. 2012)
Barr v. Southern Bell Tel., 185 S.E.2d 714 (N.C. Ct. App. 1972)
Post-Mortem Right
No court has considered the question.
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
NO
No court has required a showing of a commercial value, and appellate courts in the state have allowed claims by plaintiffs who do not have an independent commercial value in their identities.
Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938)
Hien Nguyen v. Taylor, 723 S.E. 2d 551 (N.C. Ct. App. 2012)
Does the law protect persona?
No court has considered the issue.
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
The North Carolina Supreme Court has allowed a claim against a newspaper and has used the Restatement (Second) of Torts’s broader articulation of the appropriation tort as being a use for the defendant’s “advantage,” regardless of commerciality. Although the state supreme court early on stated that the appropriation tort arises in the context of “advertising” or in connection with a “commercial enterprise,” these limits exceed the boundaries of commercial speech. One North Carolina appellate court allowed claims arising out of a use in documentary, as a bonus feature in the DVD edition.
Hall v. Post, 372 S.E. 711 (N.C. 1988)
Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938)
Hien Nguyen v. Taylor, 723 S.E. 2d 551 (N.C. Ct. App. 2012)
First Amendment Analysis
The North Carolina Supreme Court has allowed a misappropriation claim to proceed against a newspaper for publishing an advertisement, despite the Court’s recognition of the protected status of news. The state supreme court rejected the existence of a privacy-based tort of publication of private facts because of First Amendment concerns.
One appellate court allowed a claim in the context of a documentary, although no First Amendment defense appears to have been considered. Hien Nguyen v. Taylor, 723 S.E. 2d 551 (N.C. Ct. App. 2012)
Hall v. Post, 372 S.E. 711 (N.C. 1988)
Flake v. Greensboro News Co., 195 S.E. 55 (N.C. 1938)
Other Commentary
In 2009, North Carolina considered a bill that would add a post-mortem right, but the bill did not pass.