In 2017, the Supreme Court of Wyoming held (for the first time) that a right of privacy exists under the state’s common law. The court adopted the Restatement (Second) of Torts‘s approach to the privacy torts, and expressly held that an action for intrusion upon seclusion could proceed. It it is likely that the state supreme court’s endorsement of the Restatement approach will mean that the other privacy torts also exist under the state’s common law, including the tort of appropriation.
Common Law - Right of Publicity
No court has indicated the existence of a distinct right of publicity. However, the privacy-based tort of appropriation likely exists in the state, which is often synonymous with state right of publicity laws.
Common Law - Right of Privacy-Appropriation Tort
Given the recent holding by the Wyoming Supreme Court that a claim for invasion of privacy exists, at least for intrusion upon seclusion claims, it is likely that the state will incorporate the other torts delineated in Second Restatement of Torts, including the tort of appropriation.
Howard v. Aspen Way Enters., Inc., 406 P.3d 1271 (Wyo. 2017)
Town of Green River v. Bunger, 50 Wyo. 52 (1936)
No court to date has considered the question.
First Amendment Analysis
Wyoming sits in the Tenth Circuit which has applied a balancing test to evaluate First Amendment defenses in the context of right of publicity claims.
Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996)
The state’s Public Record Act indicates that custodians of records should not release information that “would constitute a clearly unwarranted invasion of personal privacy.” The act also provides immunity for service providers found to have infringed or invaded the “right of privacy.”
Wy. Stat. § 16-4-203
Wy. Stat. § 16-9-108