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What is the right of publicity?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Although you may never have realized it, your personal identity is protected by law. This means that companies are not allowed to use your name, your photo, your voice, your signature or other personal aspects in their advertising without your permission. Your identifying features belong to you alone.

The right of publicity falls under the umbrella of intellectual property law, as does trademark and copyright infringement. However, the right of publicity (sometimes called "personality rights") is a unique and rapidly developing area of law. It is also state-specific, so what is legal in California may not be legal in another state, and vice versa.

What does this look like in practice?

California's Civil Code Section 3344 covers the right of publicity in this state. However, what it looks like in practice can vary dramatically from case to case. Here are a few examples of California lawsuits that involved personality rights:

  • Musicians Johnny Winter and Edgar Winter sued DC Comics for depicting them as comic book characters.
  • Actress Vanna White sued Samsung Electronics for creating an ad campaign that featured a robot in a wig and dress standing next to a game board similar to the one on "Wheel of Fortune."
  • Singer Tom Waits sued Frito-Lay for impersonating his raspy voice in a radio commercial.
  • Racecar driver Lothar Motschenbacher sued R. J. Reynolds Tobacco Company for creating a cigarette commercial that depicted a racecar with a design that was very similar to his own personalized vehicle.
  • Surfer George Downing and six other individuals sued Abercrombie & Fitch for using their photos in the company's quarterly magazine and on t-shirts. Abercrombie had paid the photographer for the photos but had failed to obtain permission from the seven surfers to use their likenesses in its advertising.

What happens if a company violates the right of publicity?

If a business or an individual has violated your rights and used your likeness without your permission, you may have a valid claim for compensation. You may potentially be able to recover money to compensate you for damages as well as for any attorney fees.

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