A cigarette advertisement depicts a person in a helmet in front of a distinctive race car, not identified, with no face shown. A famous driver sues for misappropriation of the right of publicity. Should the complaint be dismissed?

• A. No, because there are sufficient indicia of identity to support liability
• B. Yes, because there is no identification of the driver
• C. Yes, because the ad did not show the driver's face
• D. No, because misappropriation requires consent of the celebrity

Answer: (A)

Right of publicity protection covers more than just showing a person’s face; it protects the use of a celebrity’s identity, which can be conveyed through distinctive attributes and context. Even if a driver’s face isn’t shown, the combination of a helmet with unique design and a distinctive race car in a commercial setting can signal a specific famous driver to the audience. When a cigarette ad uses imagery that strongly identifies a well-known figure for commercial gain, there’s a plausible claim that the driver’s likeness is being misappropriated.

Because there are sufficient indicia of identity—the helmet and car provide recognizable, distinctive cues tied to the celebrity—the complaint should not be dismissed on the basis that there was no facial identification. The other options fail because identification can arise from context and distinctive features, not solely from a revealed face, and misappropriation does not require consent in every case.