Invasion of Privacy by Misappropriation as a Cause of Action in Texas

Invasion of privacy by misappropriation as a cause of action in Texas applies when someone uses another person’s name or likeness to gain value, without permission, in a way that benefits the user. This cause of action often comes up in advertising, marketing, social media promotions, fundraising materials, business websites, and other public-facing communications where a person’s identity is used to attract attention or lend credibility. The law recognizes that a person’s name and likeness can carry real value, whether because of reputation, professional standing, personal story, or public recognition. This cause of action is not limited to celebrities. Ordinary people can also have a protectable interest in how their identity is used when the use is tied to a benefit for someone else. Texas courts describe three elements: appropriation of the plaintiff’s name or likeness for its value, identification of the plaintiff from the publication, and an advantage or benefit to the defendant.

The Defendant Appropriated the Plaintiff’s Name or Likeness for the Value Associated With It

The first element is appropriation. The plaintiff must show the defendant appropriated the plaintiff’s name or likeness for the value associated with it. In simple terms, the defendant used the plaintiff’s identity as an asset. This can include using a person’s name, photograph, image, voice, or other recognizable features that function as a substitute for the person’s identity.

Appropriation is not limited to direct advertising. It can also appear in promotional posts, testimonials, “before and after” features, client stories, endorsements, or fundraising campaigns. The key question is whether the defendant used the plaintiff’s identity because it had value, such as drawing attention, building trust, increasing sales, or improving the defendant’s public image. In invasion of privacy by misappropriation as a cause of action in Texas, the plaintiff must show the use was tied to the value of the identity itself, not merely a passing reference without any meaningful use of identity as leverage.

The Plaintiff Can Be Identified From the Publication

The second element requires that the plaintiff can be identified from the publication. This means that people who see or hear the publication can recognize that it refers to the plaintiff. Identification does not always require the plaintiff’s full name. A photograph alone may identify the person. A nickname, a unique description, a workplace reference, or other details may also be enough if they allow the audience to connect the publication to the plaintiff.

This element matters because the cause of action is built on use of identity. If the publication does not reasonably identify the plaintiff, the harm the law is concerned about is harder to show. In invasion of privacy by misappropriation as a cause of action in Texas, the identification analysis often depends on context, who saw the publication, what information was included, and whether the plaintiff was recognizable to the relevant audience.

There Was Some Advantage or Benefit to the Defendant

The third element is that the defendant gained some advantage or benefit. The law focuses on whether the defendant obtained value through the use of the plaintiff’s identity. The benefit does not always have to be direct cash in hand at the moment of publication. It can include attracting customers, increasing web traffic, strengthening credibility, gaining goodwill, building a professional image, raising funds, or otherwise advancing the defendant’s interests.

This element is important because it distinguishes misappropriation from purely expressive or incidental references. In invasion of privacy by misappropriation as a cause of action in Texas, the plaintiff must show that the defendant’s use of identity was not random or merely informational, but tied to a concrete advantage for the defendant. Evidence may include the context of the publication, promotional intent, the defendant’s business purpose, marketing materials, calls to action, and how the publication was used to support the defendant’s objectives.

Conclusion

Invasion of privacy by misappropriation as a cause of action in Texas protects the value of a person’s identity when it is used for someone else’s advantage without permission. To recover, the plaintiff must prove three elements: the defendant appropriated the plaintiff’s name or likeness for its value, the plaintiff can be identified from the publication, and the defendant gained some advantage or benefit. These elements keep the cause of action focused on misuse of identity as a tool for gain, rather than ordinary speech or harmless references.

This cause of action is especially important in a world where marketing is fast and content is widely shared. A name, photo, or personal story can be repurposed quickly to build a brand or attract attention. When that happens without consent and for another person’s benefit, invasion of privacy by misappropriation as a cause of action in Texas provides a clear framework for addressing the misuse and seeking relief.

Find the Law

“The three elements of invasion of privacy by misappropriation are (1) the defendant appropriated the plaintiff’s name or likeness for the value associated with it; (2) the plaintiff can be identified from the publication; and (3) there was some advantage or benefit to the defendant.” Doggett v. Travis Law Firm, P.C., 555 S.W.3d 127, 130 (Tex. App. 2018).