RESTATEMENT OF THE LAW, 3rd,
UNFAIR COMPETITION

§ 49 MONETARY RELIEF: APPROPRIATION OF THE COMMERCIAL VALUE OF A PERSON'S IDENTITY INJUNCTIONS: APPROPRIATION OF THE COMMERCIAL VALUE OF A PERSON'S IDENTITY

(1) One who is liable for an appropriation of the commercial value of another's identity under the rule stated in § 46 is liable for the pecuniary loss to the other caused by the appropriation or for the actor's own pecuniary gain resulting from the appropriation, whichever is greater, unless such relief is precluded by an applicable statute or is otherwise inappropriate under the rule stated in Subsection (2).
(2) Whether an award of monetary relief is appropriate and the appropriate method of measuring such relief depend upon a comparative appraisal of all the factors of the case, including the following primary factors:

(a) the degree of certainty with which the plaintiff has established the fact and extent of the pecuniary loss or the actor's pecuniary gain resulting from the appropriation;
(b) the nature and extent of the appropriation;
(c) the relative adequacy to the plaintiff of other remedies;
(d) the intent of the actor and whether the actor knew or should have known that the conduct was unlawful;
(e) any unreasonable delay by the plaintiff in bringing suit or otherwise asserting his or her rights; and
(f) any related misconduct on the part of the plaintiff.

Copyright 1995, American Law Institute