Something feels wrong about using someone’s image or other indicia of their persona commercially to make money without their permission. This act raises sometimes conflicting issues of privacy, free speech and commercial rights. The legal remedy that evolved for the person whose persona was “stolen” is a claim for violation of the person’s right of publicity under state law.
Not all states recognize this right of an individual to control the use of their own likeness, but California law in this area is relatively robust, perhaps because of our high number of celebrities with likenesses to exploit. FindLaw has posted an article about the right of publicity that includes a discussion of how the laws vary among the states that recognize it.
We have written about the right of publicity before, discussing legal claims involving people as diverse as Mohammed Ali, Kim Kardashian, Bob Ross, Rosa Parks, Steve McQueen, Olivia de Havilland, Ariana Grande, and Kareem Abdul-Jabbar.
California right of publicity for a living person
California Civil Code Sections 3344 and 3344.1 recognize the right of publicity of living persons and of the legal representatives of certain deceased persons.
A person who knowingly uses “on or in products, merchandise, or goods” without permission any of these attributes of another person:
- Name
- Voice
- Signature
- Photograph, still or moving, including video and live television
- Likeness
For any of these purposes:
- Advertising
- Selling
- Soliciting purchases
Of “products, merchandise, goods or services” is liable to the person whose likeness they misappropriated for any resulting losses as follows:
- The greater of actual damages or $750
- If not part of actual damages, profits from the unauthorized use
- Punitive damages in certain willful cases
- Legal fees and costs
Consent is not required for use of someone’s persona “in connection with any news, public affairs, or sports broadcast or account, or any political campaign.”
California postmortem right of publicity
The Civil Code also allows a right of publicity claim based on the unauthorized use of the persona of a deceased person. The right to enforce the right lasts for 70 years after the personality’s death. The requirements for a valid claim are the same as for a living person with some exceptions, including:
- Certain forms of expression (play, book, magazine, newspaper and several others) are exempt if “fictional or nonfictional entertainment, or a dramatic, literary, or musical work.”
- Liability can arise if someone used the decedent’s persona within one of the exempt vehicles of expression in a way that meets the requirements of the claim (unauthorized use of the persona to advertise, sell or solicit purchases of a thing or service).
- The right of publicity is a property right that the owner can transfer such as by contract, trust or will, and the owner may license the right to use the persona to another entity. Should none of these instruments transfer ownership, the statute provides direction about which relatives receive the right, unless the decedent disinherited them. If there is no document transferring the right and no family members living who are named in the statute, the right of publicity for that deceased person terminates.
- Whoever owns the decedent’s right of publicity is the person who must consent to otherwise unauthorized use of the name, photograph, voice, etc.
- To recover damages under the statute, the successor in interest of the deceased must first register their “claim of the rights” with the Secretary of State.
- The deceased personality’s persona must either have had commercial value when they died or value the death generated.
California common law right of publicity
When in 1971 the legislature passed the statute establishing the claim for violation of the right of publicity of a living person, judges had already established the right in state common law (law of decided cases) based in the right to privacy. The common law right of publicity does not extend to a deceased person’s personas. Both a common law claim and a statutory claim may be brought for the same alleged violation.
This post introduces a complex, important area of California intellectual property law that we will continue to discuss in this space.