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Common defenses to California Right of publicity claims by Attorney Steve®

Posted by Steve Vondran | Mar 11, 2021 | 0 Comments

Attorney Steve® - California Right of Publicity Law - Being pursued?  Know your potential defenses!!!

PERSONAL IMAGES BEING USED ON INTERNET

 

Introduction

If you have been sent a legal demand letter alleging the unauthorized/unlicensed use of the name, image, likeness of another (California and Arizona cases only), or received notice of a lawsuit, call us to review and discuss your potential legal defenses.  Many time now with the Internet enabling commercialization and sharing of photos, images, stories, blogs, podcasts and the like, "right of publicity cases" can surface and if found liable, there is the potential you will have to pay a large monetary settlement and potentially pay the other parties attorney fees.  There are a few defenses you should be aware of, and we can help you explore and analyze these if you are facing legal pursuit.

A few potential defenses to a California ROP

1. Statute of limitations (there is a time limit on when these cases can be brought).  In California, typically two years, but call as early as possible.

2. First amendment defense (some use of another's name, image or likeness, may be privileged for matters in the public interest or which is deemed a "public affair").  Legal definitions can be tricky, and a current review of case law is usually required.  To learn more about the first amendment and its exceptions, click here.  In these cases, you may need to look at potentially filing an "Anti-SLAPP" motion to block the lawsuit from proceeding.  However, if you lose that motion, you can end up paying HEFTY attorney fees.  We have won such a suit.

3. Waiver - If the other party "waived" their legal rights, they may have no case to bring.

4. Parody - Parody of a public figure may be protected.  But as we often say as internet and media lawyers "it's like shooting at the king, you better not miss."  We can help you see if this is a potential ROP defense.

5. Copyright pre-emption - is the case pre-empted by copyright law (meaning, they should bring a copyright federal suit as opposed to a state law driven ROP lawsuit)?

6. Incidental use - There may be instances where the commercial or advertising use is so minimal, or so "de minimis" that the law considers it too trivial to pursue.

7.  No connection between the use and advertising

Other defenses may apply.  Call us for more information at (877) 276-5084.

Overview of California Right of Publicity Law

Click here to watch Attorney Steve® explain this important concept.  Also remember, there is a concept know as "pst-mortem" rights where even a deceased individual - domiciled in California at the time of their death - can bring an action through their heairs.

But before you just "flip a coin" and take your chances (it's always best to seek permission from the person), its always good to discuss all the facts of your case with entertainment counsel. I know its redundant, but if you want an answer you can rely on, you need to pony up and get the advice. best of luck!!

Contact a California Right of Publicity Lawyer

If you have been accused of a right of publicity violation, contact our IP law firm to review your case and advise on potential defenses.  We can also help if your name, image, or likeness is being used for COMMERCIAL PURPOSES without authorization.  We have helped clients obtain "contingency fee" settlements for various infringements of their publicity rights.  We can also help review and advise on celebrity endorsement agreements, including athletes who seek to monetize their identity following the recent NCAA rules revision which now allow athletes to profit off their publicity rights earned by their hard work.  Click to see video.

Call us at (877) 276-5084 or email us through our contact form.

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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