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AMI421Issues—Claim for Damages Based Upon Invasion of Privacy by Appropriation

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 421
Arkansas Model Jury Instructions-Civil
November 2020 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 4. Intentional Torts and Defamation
AMI 421 Issues—Claim for Damages Based Upon Invasion of Privacy by Appropriation
(Plaintiff) claims damages from (defendant) for invasion of privacy by appropriation, and has the burden of proving each of five essential propositions:
First, that [her][she] sustained damages;
Second, that (defendant) used (plaintiff)'s [name][or][likeness];
Third, that the public was able to identify (plaintiff) in (defendant)'s use of the [name][or][likeness];
Fourth, that (defendant)'s use of (plaintiff)'s [name][or][likeness] was for (defendant)'s own purposes or benefit, commercial or otherwise; and
Fifth, that (defendant)'s actions were a proximate cause of (plaintiff)'s damages.
[If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for (plaintiff); but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for (defendant)].
NOTE ON USE
Do not use the final bracketed paragraph when the case is submitted on interrogatories or if an affirmative defense is utilized.
COMMENT
This cause of action was first recognized in Olan Mills, Inc. of Tex. v. Dodd, 234 Ark. 495, 353 S.W.2d 22 (1962).
The court in Stanley v. General Media Communications, Inc., 149 F. Supp. 2d 701, 706 (W.D. Ark. 2001) confirmed that this tort “… requires commercial use of a person's name or likeness” (emphasis in original). That opinion also refers to the broader standard employed in this instruction derived from Restatement (Second) of Torts § 652C (1977). The Arkansas Supreme Court has relied on the Restatement in defining causes of action based on invasion of privacy. See, e.g., Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361, 364 (1984) (examining the privacy torts and the supporting Restatement provisions).
Relying on Ward v. Blackwood, 41 Ark. 295, 298 (1883), as well as the Restatement (Second) of Torts § 652I (1977), the court in Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, at 8, held that the Arkansas survival statute, Ark. Code Ann. § 16-62-101, does not provide for the claim of invasion of privacy by intrusion upon seclusion (AMI 420) to survive the death of the decedent. However, the Cannady court's reliance on the comment to Restatement (Second) of Torts § 652I (1977) suggests that a claim for invasion of privacy by appropriation would survive the death of the decedent.
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