California Privacy & Right of Publicity Law Firm! Handling cases from San Diego, to Los Angeles, Bay Area (Silicon Valley San Jose, Oakland, San Francisco), and everywhere in between! We can also handle commercial misappropriation claims in Arizona.
Our law firm can help businesses and individuals with right of publicity law, release forms, privacy law, and arbitration & litigation in the area of privacy and publicity law. In California as in other states like New York, every person has the right to control the commercial exploitation of his or her identity. This applies to athletes, movie stars, swimsuit models, and even to the common person in California. There is a right to be left alone, and to not have your name, image, likeness, voice, signature or other elements of your identity misappropriated for commercial purposes or other advantage. Some jurisdictions refer to this as “publicity rights” or “personality rights” or even “identity rights.”
Our firm can help you obtain the rights you need, prepare and review model release forms or celebrity endorsement agreements or protect the rights of persons both alive and deceased (the California statute protects deceased rights). We can also file and defend privacy and cybertort tort cases (ex. publication or private facts, intrusion on seclusion and solitude, misappropriation of identity, false light, defamation, libel, slander and other internet law matters).
This blog discusses the common law, and statutory right of publicity law in California. If you need legal assistance, please call us or fill out the contact form below or on the side of this page. With the explosion of the home blogger, startup video bloggers, and the growth and development of social media networks such as facebook, instagram, pinterest, twitter, youtube, vimeo, yelp, and other websites, misappropriation claims will become more the rule than the exception.
June 2018 Update
Major League Baseball pitcher Trevor Bauer has filed a right of publicity lawsuit against a company – TopVelocity that he claims was using his likeness without authorization and in effect creating an implied endorsement under the Lanham Act. We will have to see how this one turns out. Could be a grand slam or perhaps a swing and a miss!
What is the legal definition for Right of Publicity?
In California, there are two separate rights of publicity, one under “common law” and the other is a right created by the statute. The statutory elements are set forth in California Civil Code Sec. 3344 which notes:
(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. As we have noted in other blogs, punitive damages in Cal right of publicity cases are also possible. Also, another other remedies that may exist under any other law are also possible as noted in section “G” of the statute:
(g) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.
This section creates a powerful right of publicity in California. As you can see, there are specific elements a Plaintiff must alleged in a civil lawsuit (complaint) in order to have a prima facie case. Let's see if we can better understand these elements.
Do animals or pets have a right of publicity?
I am not aware of any California case that has extended the right of publicity to animals or family pets. However, there are other forms of intellectual property protection such as:
- Copyrighting the photos of your pet
- Giving your pet a clever name and trademarking it (ex. Rocko the Rotweiler)
If you do these things, you can also consider (as some people are doing) setting up social media websites for their pets (ex. twitter, facebook, pinterest, etc.). From here, your pet could get “noticed” and you may be able to enter into merchandising or licensing agreements.
Watch Attorney Steve discuss California Right of Publicity Law
Bonus materials: Click on the picture above to watch our legal video discuss the common law vs. statutory right of publicity law in California. Make sure to click on the RED “V” in the corner of the video when it pops up to SUBSCRIBE for free legal updates when we launch new videos! As we like to say – “be smarter than your friends!“
What is a “knowing use” of a persons name, image, or likeness?
The statute does not define “knowing” but a knowing use must be alleged in any complaint for a violation of 3344 (note such allegation is not needed for a common law right of publicity claim, which prohibits even innocent or mistaken uses of a persons name, image, likeness or identity.
You need to check the California jury instructions for transformative use defense to right of publicity, name, image and likeness claims. A parody defense may also lie.
Are there any exceptions under the California ROP statute for news and political coverage?
Yes, there is a carved-out exception for certain medium uses:
(d) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).
Also, if you are looking in this area do not miss this article with Attorney Steve® Top 10 free speech cases dealing with California Right of Publicity law.
What is the common law right of publicity in California?
The common law right of publicity is similar to the statutory right. In short, a “knowing use” is not required under common law and a “mistake” will not shield the Defendant from liability.
In order to state a claim under California's common law right of publicity, a plaintiff must show: (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury See Jackson Browne v. McCain (C.D. Cal. 2009) 611 F.Supp.2d 1062, 1069.
What types of publicity rights are generally protected under California law?
The list of things that are protected under the California Right of Publicity Statute is long. Basically, almost anything that is a likeness of a Plaintiff can be protected. By way of examples you can look to the case law.
1. Robotic look-alikes (for example, recall Wheel of Fortune's Vanna White case against Samsung at White v. Samsung Electronics America, Inc. (9th Cir. 1992) 971 F.2d 1395, 1398 which recognized:
“the right of publicity has developed to protect the commercial interest of celebrities in their identities. The theory of the right is that a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity. If the celebrity's identity is commercially exploited, there has been an invasion of his right whether or not his “name or likeness” is used.”
2. Sound-alike singers, for example, see the Bette Midler case against Ford (Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)) 849 F.2d 460, 463-64. This case found that Midler had a case and stated:
“We need not and do not go so far as to hold that every imitation of a voice to advertise merchandise is actionable. We hold only that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California. Midler has made a showing, sufficient to defeat summary judgment, that the defendants here for their own profit in selling their product did appropriate part of her identity.”
3. Nicknames – see Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978) [image of african american boxer with the term “the greatest”|. This was a case under New York right of publicity law.
4. Former legal names – ., 85 F.3d 407 (9th Cir. 1996) [ Abdul-Jabbar argues that GMC violated his trademark and publicity rights by using his former name, Lew Alcindor, without his consent, in a television commercial aired during the 1993 NCAA men's basketball tournament].
5. Phrases that identify a person (ex. “here's johnny” – Carson v. Here's Johnny Portable Toilets, Inc.) and “This is Don. This is Don's Henley” – see Henley v. Dillard's Stores, 46 F.Supp.2d 587 (N.D. Tex. 1999).
What constitutes an infringement of the right of publicity?
Generally speaking, right of publicity infringement could be defined as using the name, image, or likeness of another person, for financial gain and without consent.
What damages are available for misappropriation of commercial identity rights?
Lost profits, statutory damages, potential punitive damages, potential attorney fees awards.
Does the right of publicity apply to dead people?
Yes, there are “post mortem rights” that pass on to the heirs in California. The rights extend for 70 years after the death of a celebrity. See California Civil Code Section 3344.1 which states:
“(g) An action shall not be brought under this section by reason of any use of a deceased personality's name, voice, signature, photograph, or likeness occurring after the expiration of 70 years after the death of the deceased personality.”
Click here to read out blog regarding Does California have postmortem right of publicity?
If I transform a famous person in a creative work does this violate the Right of Publicity?
A defendant may have a first amendment right to use the publicity of a famous person, if they are transforming them in a creative expressive way. One case that dealt with this principle in California is Winter v. DC Comics, 30 Cal. 4th 881, 889, 69 P.3d 473, 478 (2003) which noted:
“We made two important cautionary observations. First, “ the right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity's image by censoring disagreeable portrayals. Once the celebrity thrusts himself or herself forward into the limelight, the First Amendment dictates that the right to comment on, parody, lampoon, and make other expressive uses of the celebrity image must be given broad scope. The necessary implication of this observation is that the right of publicity is essentially an economic right. What the right of publicity holder possesses is not a right of censorship, but a right to prevent others from misappropriating the economic value generated by the celebrity's fame through the merchandising of the ‘name, voice, signature, photograph, or likeness' of the celebrity. See Comedy III, supra, 25 Cal.4th at p. 403, 106 Cal.Rptr.2d 126, 21 P.3d 797.) Second, “in determining whether the work is transformative, courts are not to be concerned with the quality of the artistic contribution—vulgar forms of expression fully qualify for First Amendment protection. On the other hand, a literal depiction of a celebrity, even if accomplished with great skill, may still be subject to a right of publicity challenge. The inquiry is in a sense more quantitative than qualitative, asking whether the literal and imitative or the creative elements predominate in the work.” As you can tell, it can always be risky dealing with a famous person so you should contact a right of publicity lawyer before ever investing substantial money or taking action.
Am I able to license my identity rights to a company for profit?
Yes, we can create a licensing agreement that will allow you the ability to market your name, image, and licensees for commercial profit. But you will most likely want to hire a intellectual property and entertainment law firm like ours to get the job done in a way that best protects your legal rights.
Where is the proper jurisdiction to file a right of publicity claim?
This can be a tricky question. But generally, you can sue where the defendant or defendant's corporation is incorporated, or does a substantial portion of its business. In many cases, a company will do international business (ex. a multi-national retailer of sports products), and it may be proper to sue them in California where the bulk of their sales and profits are derived. In other cases of online retailers and people selling on retail websites such as Craigslist, eBay, Etsy, and Amazon (where misappropriation may be occurring) or just on a corporate website, selling product into states like California can be enough to show the “minimum contacts” necessary for a court to find personal jurisdiction is proper. Have your publicity lawyer review this.
Can a commercial use of a famous persons celebrity trigger a “false endorsement” claim under the Federal Lanham Act?
Yes, this is another possible claim that may have to be raised under the right set of facts. In fact, in one well known case in California, this legal theory was discussed in a lawsuit filed by singer Tom Waits, who filed suit for misappropriation of his commercial identity, as well as a violation of the Federal Lanham Act section 43 for false endorsement. The case discussed:
“A false endorsement claim based on the unauthorized use of a celebrity's identity is a type of false association claim, for it alleges the misuse of a trademark, i.e., a symbol or device such as a visual likeness, vocal imitation, or other uniquely distinguishing characteristic, which is likely to confuse consumers as to the plaintiff's sponsorship or approval of the product. Standing, therefore, does not require “actual competition” in the traditional sense; it extends to a purported endorser who has an economic interest akin to that of a trademark holder in controlling the commercial exploitation of his or her identity. See Allen v. National Video, 610 F.Supp. at 625, 628 (celebrity's interest in the marketing value of his identity is similar to that of a trademark holder, and its misuse through evocation of celebrity's persona that creates likelihood of consumer confusion as to celebrity's endorsement is actionable under Lanham Act).” (emphasis added)
See Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1110 (9th Cir. 1992) abrogated by Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 188 L. Ed. 2d 392 (2014).
Deepfake Pornography Videos
If you are a famous person or celebrity and your image or likeness is being used in improper sexual manners in video games or on porn tube channels such as Youporn or Pornhub or elsewhere on the internet, we can help with takedown and right of publicity lawsuits for money damages. This type of activity can embarass and cause emotional damages when someone is using your face or body in unauthorized manners and depicting you in sexual positions without your consent.
Here is a video discussing .
These videos can be shared on torrent sites and be subject to widespread distribution. Here is more information about this new-age type of cybertort. This could also possibly be consider the tort of intentional infliction of emotional distress.
Right of Publicity Legal Resources
If your identity rights (name, image, likeness, voice, signature, photo, etc.) have been copied, stolen, misappropriated or used without your permission, or you are defending a charge of violation of right of publicity in California or Arizona, we can help you review the case law and discuss your legal rights. We have experience handling right of publicity cases and have even settled a ROP case with one of the largest sports manufacturers in the world after extensive negotiations. Contact us for a free consultation. We may be able to take all or part of your case on a contingency fee basis. Contact us at (877) 276-5084.
We have offices in San Diego, Newport Beach, Beverley Hills (serving greater Los Angeles area), San Francisco (serving Bay area and Silicon valley) and Phoenix (serving Phoenix, Scottsdale and surrounding areas). We have a track record of success in name, image and likeness law, and even secured a recovery against a FORTUNE 100 company (who cannot be named due to a confidential settlement agreement).