Attorney Steve® - California Right of Publicity - Using celebrity photos and images for commercial purposes. General legal overview!
Introduction
Using celebrity photos for commercial purposes can be a risky endeavor in California as it can lead to allegations of violating the Right of Publicity. The Right of Publicity is a legal concept that grants individuals the exclusive right to control the commercial use of their name, likeness, or image. It is a valuable asset for celebrities in California, as it can be a great source of income for them. However, if a company or individual uses a celebrity's image without their permission, they could face civil penalties in a ROP lawsuit.
In this blog, we will discuss the dangers of using celebrity photos for commercial purposes as well as the legal ramifications of such actions.
What is the Right of Publicity?
The Right of Publicity is a legal concept that grants individuals the exclusive right to control the commercial use of their name, likeness, or image. This right is established by law and affords celebrities the ability to control how their identity is used for commercial purposes.
The Right of Publicity is generally recognized in California, but the specifics of the right may vary depending on the state (for example, New York has its own version). It is important to note that the Right of Publicity does not apply to news or public affairs reporting. So, if you are using an image to report on the game, you may have a legal defense if sued. It also does not apply to any use of a celebrity's name, likeness, or image that is NOT used for advertising a product or service. For example, a news report, editorial piece, or documentary about a celebrity will have more defenses if a lawsuit is filed pertaining to the Right of Publicity.
§ 3344. Unauthorized commercial use of name, voice, signature, photograph or likeness
PODCAST: California Right of Publicity Jury Instructions
What are the Risks of Using Celebrity Photos for Commercial Purposes?
If a company or individual uses a celebrity's image without their permission, they could face legal damages for the use, including potentially lost profits, damages to reputation, and more. In addition to potential civil penalties, using an unauthorized photo of a celebrity can also damage a company's reputation. If a company or individual is found to be using a celebrity's image without their permission, it can be seen as a sign of disrespect and can hurt the company's public image.
Watch Attorney Steve® Explain this legal concept in this Litigation Whiteboard® episode
What are the Legal Ramifications of Using Celebrity Photos for Commercial Purposes?
In California, the Right of Publicity is established by statute, but there is also a common law provision. The statutory provisions apply to ALL PEOPLE (not just celebrities), and the prevailing party in action can seek their attorney fees.
Top California Right of Publicity Cases
Here are a few of the most important California right of publicity cases. The California Right of Publicity is a law that protects a person's name, image, and likeness from being used for commercial purposes without permission. This law has been the subject of many court cases, and here are the top 10 California Right of Publicity cases:
1. Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983): In this case, Clint Eastwood sued for an invasion of his right of publicity after a restaurant owner used his name, image, and likeness in promotional materials without his permission. The court ruled in favor of Eastwood, finding that the restaurant owner had violated his right of publicity.
2. White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992): Vanna White sued Samsung for using her image in a commercial without her permission. The court held that White's right of publicity had been violated and awarded her damages.
3. Kareem Abdul Jabaar - The Kareem Abdul Jabaar case has emerged as one of the most important California right of publicity cases in recent history. The legendary basketball player and Hall of Famer was initially successful in his lawsuit surrounding the use of his name and likeness without authorization - which is illegal in the state of California.
4. Waits v. Frito-Lay, 978 F.2d 1093, 1098-1100 (9th Cir. 1992). This case had an important holding for musicians and other. The court held:
"Clearly, performers that have a commercial interest in their likenesses or identities should have the right to reap the benefits of what they have sown. In cases like Midler, the right of publicity may be the appropriate vehicle for this recovery. On the other hand, there are some circumstances in which the application of this right is completely out of place. When an individual sings a certain way (e.g. Tom Waits), plays the guitar a certain way (e.g. Carlos Santana), dances a certain way (e.g. Fred Astaire), tells a joke a certain way (e.g. Andrew "Dice" Clay), takes a photograph a certain way (e.g. Ansel Adams), or paints a picture a certain way (e.g. Georgia O'Keefe), the question arises as to whether the courts should prevent any and all future artists and performers from adopting that style or approach, unless they first buy the rights from the original performer. If the right of publicity exists as the Waits court asserts, then Tom Waits should have to buy the rights to sing the way that he does from the estate of Louis Armstrong.
The question also arises as to who is the original creator of a style, and therefore to whom an individual must turn in order to buy the rights to perform and make a living using that style. If the Ninth Circuit insists on choosing the right of publicity for a Waits-type recovery, the very least it can do is make a sincere attempt to define the elements of the Midler tort so that future parties will have an idea as to what exactly constitutes its violation. If it does not, all that an individual will need to do to drag a defendant into court is assert that the defendant has appropriated some aspect of his identity. If successful in court (which is the most likely result in California) that individual will be able to prevent any future party from using that style of expression. More likely, the owner of the right of publicity will reap the windfall that accompanies a monopoly."
5. Shibley v. Time Inc., 864 F.3d 1146 (9th Cir. 2017): In this case, an actress sued Time Inc. for using her image on the cover of a magazine without her permission. The court found that the actress' right of publicity had been violated and awarded her damages.
6. Downing v. Abercrombie & Fitch, 257 F.3d 916 (9th Cir. 2001): In this case, a model sued Abercrombie & Fitch for using her image in a catalog without her permission. The court held that the model's right of publicity had been violated and awarded her damages.
7. No Doubt v. Activision Publishing, Inc., 724 F.3d 1141 (9th Cir. 2013): The band No Doubt sued Activision for using their likenesses in a video game without their permission. The court held that No Doubt's right of publicity had been violated and awarded them damages.
8. Kimmel v. Guglielmi, 131 Cal. App. 4th 1641 (2005): In this case, a former Playboy Playmate sued a photographer for using her images in a calendar without her permission. The court found that the Playmate's right of publicity had been violated and awarded her damages.
9. Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974): In this case, a race car driver sued for using his name and likeness on a cigarette package without permission. The court held that the driver's right of publicity had been violated and awarded him damages.
10. Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001): This case involved the use of a Three Stooges caricature on t-shirts without permission. The court held that the right of publicity of the Three Stooges had been violated and awarded them damages.
Conclusion
Using celebrity photos for commercial purposes can be a risky endeavor in California as it can lead to allegations of violating the Right of Publicity. This is one reason most stock photo companies (ex., Getty, iStockPhoto) do not license celebrity photos except for "editorial uses." The Right of Publicity is a legal concept that grants individuals the exclusive right to control the commercial use of their name, likeness, or image. If a company or individual is found to be using a celebrity's image without their permission, they could face civil penalties. It is, therefore, important to obtain the permission of the celebrity before using their image for commercial purposes. Doing so can help avoid potential legal ramifications and protect a company's reputation. We can help if you need to negotiate with a celebrity to obtain the rights to use their likeness, voice, signature, image, or video, for a commercial purpose, for example, in your Facebook ads, or YouTube videos.
Contact a California Right of Publicity & Celebrity Endorsement Law Firm
We have handled several very large Right of Publicity cases in California. One against one of the largest sports manufacturers in the World, one for a professional surfer, and another one against a very large financial institution, all recoveries in favor of our clients. Call us for more information. We can represent Plaintiff and Defendant clients. Call us at (877) 276-5084 or email us with details through our contact form.
