The Right of Publicity and how it protects against commercial use

On Behalf of | Sep 8, 2021 | Right Of Publicity |

The Right of Publicity is not a federal right, instead, it is protected by state common or statutory law. In California, there are two types of Right of Publicity law, a statute and a common law right. 

The statutory Right of Publicity

This statute protects a person’s name, voice, signature, photograph, and likeness from being used for commercial purposes. However, there is a three-step test that is required to determine if there has been a violation.

  • Knowledge of the use of an individual’s protected identity
  • Used for advertising purposes
  • Direct connection between the use and the commercial purpose

The last point means that to be considered a violation of the statute, the use of a person’s name, voice, likeness, etc, has to have a direct connection to the advertising or sponsorship. An example of this might be an ad for a soft drink, and the setting for the ad is someone’s living room. Around the living room, there are various pieces of art on the wall, including a blurry photograph on the wall in the background, only briefly in the camera, with twenty or more people in it. If you stop the video and look carefully, one of the people in the photograph is a celebrity.   In this situation, the use of the celebrity’s image may not be considered actionable since it is not directly involved in promoting the soft drink. Conversely, if the same ad proclaimed that the celebrity drank the advertised soft drink, this would likely be considered a violation since no prior consent was obtained. There is a notable exception for uses “in connection with any news, public affairs, or sports broadcast or account, or any political campaign.”

The common law right

While this also protects a person’s name, voice, signature, photograph, and likeness, it has a broader definition of what constitutes a violation. There is a four-step test that is required to determine whether there has been a violation.

  • Use of the individuals “identity”
  • Use of the name or likeness for commercial, or other, advantages
  • Lack of consent
  • Resulting injury

Even though part of the test involves the direct use of the name or likeness, the common law right actually focuses more on identity in general. For example, oftentimes simply imitating a person’s voice does not violate the statute, but it can be a violation of the common law right. The user also does not have to be strictly commercial, but the less commercial a use is, the more likely it is to fall under First Amendment rights.

The Right of Publicity protects you against companies using your name or image from use for commercial purposes.