Generally speaking, in Virginia, while no general right of privacy exists, § 8.01-40 provides for an injunction and damages for the commercial use of an individual's name, portrait, or picture without permission. If the person is deceased, there is the same right of action unless certain family members consent, provided that the unauthorized use occurs within 20 years of the decedent's death.
This 20-year cut-off provision (a ''statute of repose'') operates to define the maximum period within which an action under § 8.01-40 may be brought, regardless of the applicable statute of limitation.
In Town & Country Props. v. Riggins, the Supreme Court noted that Virginia remains one of a handful of states to recognize privacy interests in the limited form reflected in this statute. The Court noted that advertising uses of a person's name without permission are actionable under this code section. First Amendment arguments, particularly in the context of advertising that does not convey information, were unavailing.
In addition to compensatory damages, punitive recovery is permitted under the low threshold specified by the General Assembly, where the plaintiff's name is ''knowingly used'' with consent for advertising purposes without any requirement to show willful or wanton conduct on the part of defendant. The Supreme Court has held that it is unnecessary to prove ''willful, wanton and/or malicious conduct'' in order to support an award of punitive damages under Code § 8.01-40(A).
The Court has further held that while the statute does not require proof of ''willful, wanton and/or malicious conduct,'' evidence of such behavior is fully admissible, because nothing in the statutory language of Code § 8.01-40(A) suggests a restriction upon proof of damages, and indeed the statute expands the circumstances in which punitive damages can be awarded.
Nonetheless, proof of damages -- including proof supporting punitive awards -- must be related to the wrong suffered. Under this statute, the cause of action is premised upon the concept that a person holds a property interest in his or her name and likeness. Such a property interest has value, and a conversion occurs when another exercises dominion and control over such intangible personal property and uses it without the owner's consent. Proof of damages must therefore relate to the plaintiff's alleged injury, and not to unrelated or collateral matters.
As usual, every law has exceptions. Consult with a Charlottesville lawyer for all the scoop.
Tucker Griffin Barnes P.C.
Charlottesville, VA
434-973-7474
Inquire@TGBlaw.com
http://www.tgblaw.com/
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