Delaware

Delaware has not explicitly recognized a right of publicity, but does recognize a right to privacy and has enumerated the tort of misappropriation as one of the four privacy torts recognized by the state.

Statute

Common Law - Right of Publicity

LIKELY YES.

No court has explicitly recognized a distinct “right of publicity,” but a federal appellate court has suggested that Delaware would recognize an enforceable property right in one’s name or likeness.

Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (3d Cir. 1956)

Common Law - Right of Privacy-Appropriation Tort

YES

The state recognizes the tort of “appropriation of some element of plaintiff’s personality for commercial use.”

Barbieri v. News-Journal Co., 189 A.2d 773 (Del. 1963)

Limits on Right

Does the law protect persona?

UNCLEAR

One unpublished case suggests that the state’s misappropriation tort is limited to the use of name or likeness.

Slibeck v. Union Oil Co., 1986 WL 11542 (Del. Super. Ct. Sept. 18, 1986)

Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?

UNCLEAR

One unpublished case suggests that the state’s misappropriation tort is limited to uses that are of “commercial value” to the defendant.

Slibeck v. Union Oil Co., 1986 WL 11542 (Del. Super. Ct. Sept. 18, 1986)

First Amendment Analysis

Delaware sits in the Third Circuit Court of Appeals. In Hart v. Electronic Arts, Inc., the Third Circuit adopted the transformativeness test for analyzing a First Amendment defense to right of publicity claims in the context of New Jersey’s right of publicity. Delaware courts have also used a newsworthiness defense to its privacy torts rooted in the First Amendment.

Hart v. Elec. Arts, Inc., 717 F.3d 141 (3d Cir. 2013)