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California right of publicity and punitive damages

Posted by Steve Vondran | Jun 16, 2016 | 0 Comments

Are PUNITIVE damages available for misappropriation of identity invasion of privacy cases in CA?


Some Defendants are surprised to learn that merely using someone elses name, picture, or image on their website, newspaper, podcast or other area could trigger a right of publicity cause of action (which is a form of invasion of privacy, and is one of the “privacy torts”).  But where the issue can become even more dicey (and risky to corporations and their marketing or advertising departments) is where the issue of “punitive damages” is raised.  Our firm has experiencing litigation these cases, and this blog will highlight how this issue can play a critical role in every publicity case.

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Civil Code Section 3344 specifically authorizes punitive damages

Here is what the “statutory” ROP statute says (keep in mind there is also a “common law” right of publicity in CA):

3344. (a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.

So as you can see, the Cal 3344 statute specifically provides and contemplates that using publicity rights without paying for it, on a company advertising or soliciting piece can lead to punitive damage awards, in fact, they have.

California Civil Code section 3294

Cal Civ. Code 3294 is California's “punitive damage statute” and this will be what the Court's will likely look to in determining whether a Plaintiff is able to prove grounds for “punis” (punitive damages are damages that are designed to punish and deter future unlawful conduct).  This section reads:

“3294. (a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (c) As used in this section, the following definitions shall apply:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

As noted, the case CANNOT relate to breach of contract (there is normally no punitive damages allowed for a party breaching a contract).  However, a bad faith breach of an agreement (such as failing to pay life insurance benefits under an insurance policy) could trigger large bad faith insurance awards.  We can help in insurance bad faith cases as well.

Watch Attorney Steve explain Cal ROP law in the entertaining video

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ROP Case law – Damages to Punish and Deter

California courts have noted that where you have a right of publicity violation involving a defendant using names, photos, and images for advertising purposes, the motives of the Defendants are at issue.  For example, seethe Fairfield case – citing Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291.  Fairfield v. Am. Photocopy Equip. Co., 138 Cal. App. 2d 82, 88, 291 P.2d 194, 198 (1955) which noted:

Civil Code, section 3281, reads: “Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.” Section 3333 provides that the measure of damages for a tort “is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (16) Invasion of privacy for advertising purposes may afford the basis for an inference of improper motive. The advertisement necessarily carried the implication that plaintiff endorsed the machine and had permitted defendant to use his name as a lawyer in its advertisements. He had done neither. Plaintiff is entitled to compensation for injury to his peace of mind and to his feelings. The recoverable compensation for these items is difficult to determine since they afford no definite criteria for the ascertainment of damages. (18) In a case of this character there can be no direct evidence of the amount of damages sustained, nor the amount of money which will compensate for the injury. The measure of damages therefore is for the trier of fact, and in assessing such damages he is accorded a wide and elastic discretion. See also  Taylor v. Pole, 16 Cal.2d 668, 673 [107 P.2d 614].)

Use of name, image, likeness, voice, signature or other identity for advertising purposes

Here are a few other cases that dealt with the issue of punitive damages in misappropriation of identi:

  1.  Solano v. Playgirl, Inc., 292 F.3d 1078, 1090 (9th Cir. 2002) – “As for damages, the measure of damages available for misappropriation claims includes the economic value of the use of an individual's name and likeness. See Zacchini v. Scripps–Howard Broad. Co., 433 U.S. 562, 575, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). Section 3344 specifically provides that a plaintiff may recover “any profits from the unauthorized use” in addition to actual damages or the $750 minimum statutory damage amount and punitive damages. Cal. Civ.Code § 3344(a) (1997). Solano has established genuine issues with respect to both of these elements.
  2.  Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1104 (9th Cir. 1992) abrogated by Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014) – “In California, exemplary or punitive damages are available “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal.Civ.Code § 3294(a).   The statute defines “malice” in pertinent part as “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” See § 3294(c)(1)


Here are some of the relevant California jury instructions for right of publicity cases in CA

  1.  3344 use of name or likeness (CACI 1804A)
  2. Appropriation of name or likness (CACI 1803)
  3. California right of privacy
  4. Damages under Civil Code 3344
  5. Punitive damages jury instructions (CACI 3948)
  6. Individual defendant no bifurcated trial  (CACI 3940)

We can help clients with our offices in San Diego, Newport Beach (Orange County), Beverly Hills (hollywood and LA area), San Francisco (serving bay area, and silicon valley), and Phoenix, Arizona. We handle cases throughout AZ and CA.


There may be a case to be made that a Defendants wrongful use of your name, image, photo, identity, signature, nickname, voice or other identifying characteristics of ones personality for commercial advertising purposes can be subject to a claim for punitive damages by the Plaintiff in the state or federal court.  If you need help in a case, contact us, we can help review your legal rights and help you handle your case whether on the Plaintiff or Defendant's side of the table.  We offer a free initial consultation, and some cases we may be able to take on a full or partial contingency fee basis.  Call (877) 276-5084

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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