Stauffer contends the misappropriation instruction should mention the commercial nature of the tort, the right of publicity aspect of the tort, the newsworthiness privilege, and that selling additional copies of newspapers is not sufficient economic gain to the defendant. Stauffer argues that without the additional instruction, the jury arrived at a verdict contrary to the law applied to the evidence at trial. The appellate courts of Kansas have not before addressed this issue. The origin of this theory of liability and its application in other jurisdictions supports an instruction on the newsworthiness privilege and the limitation to commercial cases. Case law from other jurisdictions supports giving a jury instruction indicating that an action based on misappropriation is limited to misappropriation for a commercial use.
Courts routinely review claims based on a codified right of privacy.
These statutes often require that the misappropriation be for advertising or for purposes of trade before there is liability. Additionally, PIK Civ. No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness.