Minnesota recognizes the common law tort of invasion of privacy for the misappropriation of name or likeness. Federal courts have decided that Minnesota also would recognize a distinct right of publicity at common law. 



Common Law - Right of Publicity


Federal courts have held that Minnesota would recognize a right of publicity.

Ventura v. Titan Sports, Inc., 65 F.3d 725 (8th Cir. 1995)

Common Law - Right of Privacy-Appropriation Tort


Minnesota recognizes a right to privacy, including the tort of appropriation for the unauthorized use of another’s name or likeness for the defendant’s own benefit.

Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998)

Post-Mortem Right


A district court in Minnesota has held that the right of publicity is descendible in a case that is still pending. Paisley Park Enters. v. Boxill, 299 F. Supp.3d 1074 (D. Minn. 2017)

Limits on Right

Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?


Although early cases suggested that there might be a requirement of celebrity status for a property-like right of publicity claim, after the Minnesota Supreme Court’s decision in Lake v. Wal-Mart Stores, Inc., it is likely that a claim can be brought regardless of the commercial value of the appropriated identity.

Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998)


Earlier cases that suggested the requirement of a celebrity status, include House v. Sports Films & Talents, Inc., 351 N.W.2d 684 (Minn. Ct. App. 1984); Uhlaender v. Henricksen, 316 F.Supp. 1277 (D. Minn. 1970).  I note that Uhlaender’s holding with regard to the First Amendment has largely been overruled by the Eighth Circuit.

Does the law protect persona?


Federal courts have read Minnesota’s common law right of publicity to include characters played by plaintiffs and nicknames.

McFarland v. E & K. Corp., 1991 WL 13728 (D. Minn. 1991)

Faegre & Benson, LLP v. Purdy, 367 F.Supp.2d 1238 (D. Minn. 2005)

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


No state or federal court has so limited either the tort of appropriation or the right of publicity.  In the context of the appropriation tort, the Minnesota Supreme Court stated that there is a claim if a defendant receives “any benefit.”

Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998)

Dryer v. National Football League, 55 F. Supp.3d 1181 (D. Minn. 2014)

First Amendment Analysis

Federal courts in Minnesota have allowed First Amendment defenses to limit the scope of Minnesota’s rights of publicity and privacy. Minnesota sits in the Eighth Circuit which has adopted a balancing test to weigh free speech concerns against the interests of publicity holders.  In C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 503 F.3d 818 (8th Cir. 2007), the circuit held that fantasy sports leagues’ use of baseball players’ names and statistics is protected by the First Amendment.

C.B.C. Distrib. & Mktg v. MLB Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007)


Other Commentary

The Eighth Circuit has held that right of publicity claims are preempted by copyright law, at least in the context of the use of copyrighted football game footage when the plaintiffs had agreed to appear in the original televised games and the defendant owned the rights to the footage and the use was in noncommercial speech.

Dryer v. National Football League, 814 F.3d 938 (8th Cir. 2016)

Federal Courts have held that misappropriation claims under Minnesota law are preempted by the Communications Decency Act § 230.

Faegre & Benson, LLP v. Purdy, 367 F.Supp.2d 1238 (D. Minn. 2005)