Litigation Warrior – Opposing a Demurrer in California ROP cases (sample language) Introduction

Right of publicity, to me, is a form of intellectual property.  A person (whether famous or not) has a legal right to control the commercial use of their identity – name, image, nickname, likeness, voice, photo, signature etc.  Yet in a competitive world disputes can arise both online and offline leading to all kinds of legal disputes.  For example, using a models photo on your website even though not authorized by that person.  This could lead to a California right of publicity claim.  This blog provides some sample general legal information from a opposition to a Demurrer we filed in one of our Plaintiff cases.  This should provide you with a general sense of the legal issues involved.

Sample language from a recent opposition in a commercial misappropriation case

Here is some language pulled from a recent case for reference purposes only.

Plaintiff is the master of the Complaint and has brought two straight-forward causes of action in the Complaint that Defendant files this Demurrer (violation of right of publicity and IIED):

1. Violation of Right of Publicity (in California, there is both a common law right of publicity and a statutory right under Civil Code 3344 as set forth below).   In Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 391, 21 P.3d 797, 799 (2001) the California Supreme Court noted that there are two separate violations constituting a right of publicity claim:

“In this state the right of publicity is both a statutory and a common law right. The statutory right originated in California Civil Code section 3344 (hereafter section 3344), enacted in 1971, authorizing recovery of damages by any living person whose name, photograph, or likeness has been used for commercial purposes without his or her consent. Eight years later, in Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425 (Lugosi), we also recognized a common law right of publicity, which the statute was said to complement (id. at p. 818 and fn. 6, 160 Cal.Rptr. 323, 603 P.2d 425). But because the common law right was derived from the law of privacy, we held in Lugosi that the cause of action did not survive the death of the person whose identity was exploited and was not descendible to his or her heirs or assignees.” (emphasis added).

The civil code prohibits unlawful appropriations of name, image and likeness, as does the common law.  In California, there are at least two different jury instructions that cover right of publicity torts (See CACI 1803 and CACI 1804A).  Plaintiff has properly pled the elements of these causes of action in the Complaint IN FACT DEFENDANT'S DEMURRER DOES NOT EVEN ATTACK THE ELEMENTS, INSTEAD, THEY CLAIM TO BE CONFUSED AS TO WHAT PLAINTIFF COMPLAINT IS ACTUALLY ABOUT.  This manufactured ignorance of the law is not grounds for Demurrer.

The common law right against misappropriation is one of the four Torts under the California Right of Privacy as mentioned often by Dean Prosser:

“The right to prevent others from appropriating one's photograph for commercial gain has evolved from the common law right of privacy. The “four distinct torts identified by Dean Prosser and grouped under the privacy rubric are:

(1) intrusion upon the plaintiff's seclusion or solitude, or into his private affairs;

(2) public disclosure of embarrassing private facts about the plaintiff;

(3) publicity which places the plaintiff in a false light in the public eye;

and

(4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. See Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 416, 198 Cal.Rptr. 342, fn. omitted.) This action concerns the fourth category, appropriation for the defendant's advantage of the models' photographs, which is also referred to as the right of publicity.” See KNB Enterprises v. Matthews, 78 Cal. App. 4th 362, 366, 92 Cal. Rptr. 2d 713, 716-17 (2000).

Similarly, in this case Plaintiff argues both the common law right of publicity, but also the statutory violation.  In addition, California Civil Code Section 3344(g) states that the statutory violation is cumulative to other remedies:

‘(g) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.”

Civil Code section 3344 complements the common law tort of appropriation.  See Eastwood v. Superior Court (1983) 149 Cal.App.3d 416, 417 [198 Cal.Rptr. 342].  In short, there is no question that given the facts of the case Plaintiff is entitled to, and has plead the elements of both the common law and statutory right of publicity, and this is plain from a reading of the four corners of the complaint.  Defendants cannot pretend they do not understand this, and they have no taken any issue with the factual pleadings.  Their Demurrer as to this cause of action is plainly a waste of the Court's time and should be overruled.  Any attempt to pretend there is a cause of action for false light or stalking that confused Defendants is nonsense.

Using a Plaintiff's image or name in commercial advertising may trigger punitive damages

One issue that pops up in publicity cases is whether a commercial use of another persons photo or image in commercial marketing and advertising (ex. using a model's photo on your website to try to sell your widgets), can trigger claims for punitive damages.  In fact they can, and this was built into the Section 3344 by statute and California case law also recognizes this important deterrent:

Invasion of privacy for advertising purposes may afford the basis for an inference of improper motive. See Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291 (discussing the right to be left alone).   See also Fairfield v. Am. Photocopy Equip. Co., 138 Cal. App. 2d 82, 88, 291 P.2d 194, 198 (1955) which noted”

“The gist of the cause of action in a privacy case is not injury to the character or reputation, but a direct wrong of a personal character resulting in injury to the feelings without regard to any effect which the publication may have on the property, business, pecuniary interest, or the standing of the individual in the community. ….The right of privacy concerns one's own peace of mind, while the right of freedom from defamation concerns primarily one's reputation. The injury is mental and subjective. It impairs the mental peace and comfort of the person and may cause suffering much more acute than that caused by a bodily injury. The desire of a business concern for publicity or advertising does not justify its invasion of the right of privacy.  The motives of a person charged with invading the right are not material with respect to the determination whether there is a right of action, and malice is not an essential element of a violation of the right. Inadvertence or mistake is no defense.”

Contact an Internet & IP Law Firm

If your business is facing a right of publicity demand letter, lawsuit or request for arbitration, or you are an individual who has their commercial identity stolen or misappropriated without consent call us to discuss your case.  Some Plaintiff cases can be taken on a full or partial contingency fee basis.  Contact a California right of publicity lawyer at (877) 276-5084.