Right of Publicity

Publicity Rights

The right of publicity allows a person to have a monopoly on their image.  People work hard to improve their valuable public image and their ability to publicize themselves.

The right of publicity allows an individual to control and profit from the commercial use of his or her name, likeness, and persona.  It is the protection of people to regulate the commercial use of his or her identity. It protects against the loss of commercial value resulting from the unauthorized appropriation of an individual’s identity for commercial purposes.  The right of publicity is generally protects by state law and the law varies from state to state. Right of publicity claims involve the publication of truthful information.

California Statutory Right Of Publicity

California Civil Code section 3344, entitled “Unauthorized commercial use of name, voice, signature, photograph or likeness,” states:

“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.”

The person’s name or likeness must be used for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services to support a violation of California Civil Code section 3344.

Essentially, the right of publicity is an individual’s economic right to benefit from their own likeness.

Although most right of publicity cases involve celebrities (those who have obtained notoriety and generate revenue from public appearances). California Civil Code section 3344 does not require the plaintiff to be a celebrity in order to recover damages. It also includes actual damages and profits.  In fact, by enacting California Civil Code section 3344(a), the legislature provided a practical remedy for a non-celebrity plaintiff. These are damages are difficult to prove and who suffers primarily mental harm from the commercial misappropriation of his or her name.  Pursuant to California Civil Code section 3344(a), an injured party may recover either the amount of damages specified in the statute or actual damages. Whichever is greater, as well as profits from the unauthorized use.  California Civil Code section 3344(a) states:

“…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.”

Furthermore, in order to plead the statutory remedy provided in California Civil Code section 3344, the defendant must have knowingly used the plaintiff’s name, photograph, or likeness for purposes of advertising or solicitation. Also, a direct connection must be alleged between the use and the commercial purpose.

Common Law Misappropriation  

For a common law cause of action of misappropriation to be established, the plaintiff must prove:

1. the defendant used the plaintiff’s identity;
2. the commandeering was for the defendant’s benefit commercially or otherwise;
3. absence of agreement;
4. and resulting injury.

However, no liability will result for the publication of matters in the public interest.  The public policy is that the public has the right to know. The press also has the freedom to tell it.

California Code Of Civil Procedure Section 425.16(c)

California has codified an Anti-SLAPP Statute.  Pursuant to California Code of Civil Procedure section 425.16(c), states that the “prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” This means that if the court finds that the defendant’s publication was protected speech, then the defendant may be entitled to recover their attorney’s fees.  The court will see the plaintiff’s lawsuit as an attempt to “chill” free speech.

Lanham Act

The Lanham Act also known as the Trademark Act is the federal statute that governs trademarks, service marks, and unfair competition. Unauthorized use of a person’s identity to create a false endorsement can fall up under this act.

Who Can Sue For Rights Of Publicity?

Celebrities are not the only ones who can pursue a violation of the right of publicity lawsuit. The right of publicity cases can be pursued by anyone in California. Damages can be pursued by an attorney for violation of the right of publicity.

Celebrities and Public Personalities

Most cases involving the right of publicity claims involve either celebrities or public personalities. A celebrity is defined as a “famous or well-known person.” It is very difficult to establish who is a celebrity and clarify whether they are protected by the right of publicity.

Protection of the First Amendment

The First Amendment seeks to maintain a balance between an individual’s right of publicity and free speech rights that allow specific usage of an individual’s identity. The First Amendment produces a hierarchy of protection under the newsworthiness exception based upon how an individual’s identity is implemented. The least protected under the First Amendment is advertisement where a portrayal of a person’s identity is used to sell a product or a service.

The First Amendment exists to ensure the public knows about events, people, and other topics that affect the public.

The newsworthiness exception includes information regarding the real world which includes:

1. current news items, news that has occurred in the past and information that is not strictly news, but is still informative;
2. media presentation on “public issues”;
3. factual, educational and historical material; and
4. entertainment and amusement concerning interesting aspects of an individual’s identity.

There are two critical questions that must answer before using an individual’s identity under the newsworthiness exception.

1. Is the unauthorized use of an individual’s identity really news that is subject to First Amendment protection?
2. Is there a reasonable connection between the use of the individual’s identity and the news that is being conveyed?

Unauthorized use of a person’s identity in connection with the “news” or of  a “public interest” story requires a reasonable relationship between the subject of the story and the individual’s identity. When a connection is presented the individual’s property rights in the right of publicity must follow the First Amendment.

An individual must establish that property rights for his/her identity were used to attract attention to either news or the entertainment message for a right of publicity claim to succeed. Pictures taken in a public sector cannot use the right of publicity claim if it illustrates a newsworthy story. Unauthorized biographies are protected by the First Amendment. The right of publicity cannot be used to suppress undesired discussion and commentary on a public person’s lives.

Novels and other fictional works based on actual people and events is not possible if an individual’s right of publicity legally prohibits it. The courts held that as long as the work makes it known that it is fiction then there is no infringement of an individual’s right of publicity. An individual’s right of publicity would be violated if the works claim to be factual and it is fiction.

The First Amendment permits a publisher to publish and advertise newsworthy material when the material is about the individual and accurately represents the content of publication.

How Is The Right Of Publicity Violated?

The most common violation involves photos being distributed without consent or distributed in an unauthorized way. Another violation is if an individual is placed in a false light by the release of private information even though the photo may have been authorized by an advertising agency.

An example of how the right of publicity is violated:

An individual takes a photo for a modeling agency. Somehow this photo is given or sold to a media outlet who then utilizes the photo in an advertising campaign. The individual in the photograph discovers the photo on a poster in a clothing store where they realized they never gave consent to this company to distribute the photo. The advertising company is now in violation of the right of publicity. The company can be held accountable for any profits made while the advertisement was in place.

Under California law, photos taken of crowds are not a violation of an individual’s publicity rights unless an individual is singled out.

Civil Code § 3344(d) states, “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).”

What Is The Difference Between Publicity Rights And Privacy Rights

Publicity right is an individual’s right to prevent their image, photo, likeness, or voice commercially from being utilized for advertising by another without their permission.

Privacy rights is an individual’s right to prevent their name or likeness from being utilized by another, privacy infringed, private information made public, and to not be placed in a false light.

Privacy rights tend to end once an individual dies. Publicity rights, in California, that are connected with the deceased individual’s name, image, or voice in regards to commercial value resumes for at least 70 years. This is called Post-Mortem Right.

Damages For Violation Of The Right Of Publicity

Individual’s can pursue a claim for actual damages and profits made by the defendant from the use of their image, likeness, photos, etc. Punitive damages may also be pursued if an individual can prove oppression, malice, or fraud.

When building your case the most important elements would be to determine how much profit was made by an advertiser and the number of times the photograph, film, video, or commercial was used.

Statute Of Limitations For The Right of Publicity

Under California law, an individual has two years from the date of discovery of the violation to file a lawsuit in court. Two year statute of limitations applies to a cause of action brought pursuant to California Civil Code section 3344. Unless a reasonable person in the plaintiff’s position had no meaningful ability to discover the publication, the plaintiff must file suit within two years of when the defendant first published the plaintiff’s image or republished the plaintiff’s image.  It is always best to consult with an experienced attorney concerning the timing to file a lawsuit.

California’s Single Publication Rule

Under California Civil Code section 3425.3, the rule provides that:

“No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.”

Advertising Injury Insurance

Damages are often covered by insurance policies called advertising injury insurance. This type of insurance covers defamation such as slander, libel, product disparagement, infringements of copyrights, trademarks, slogans, and advertisement ideas. It may also include violations, for example intellectual property rights, such as unauthorized use of an individual’s name, likeness, image, or voice.

Advertising injury is very easy to cause due to vast growth of technology. All it really takes is a click of a mouse, a statement on a website, an email being sent, or a posting on social media.

Transformative Work

As a defense to a right of publicity violation or a misappropriation claim. The defendant will assert that the work is a form of protected expression of speech.  The defendants’ use of the plaintiff’s name and persona was protected expression under the First Amendment. It is because it incorporated significant creative elements.  In essence, the work is transformative in that the reproduction of the plaintiff’s likeness melds with the other elements to become the publisher’s own artistic expression.

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