The right of publicity forbids the unauthorized use of an individual’s name or likeness for commercial or other certain exploitative purchases. Here are the salient details.
Elements of right of publicity
To claim right of publicity has four requirements:
- The implicit use of an individual’s name or likeness
- The use is for commercial purposes.
- The action is done without the subject’s consent.
- The usage results in personal injury.
Individuals will have to prove all elements of the common law action. Particularly, you must assert the defendant engaged in the violation knowing there was a direct connection between the alleged act and the deliberate commercial purpose.
A claim of right of publicity is robust in California and taken quite seriously. The state is, after all, a center point for celebrities.
Statutory and common law
The state recognizes a common and a statutory right of publicity law.
The unauthorized use of a person’s identity is a violation of California Civil Code section 3344. These laws protect an individual’s exclusive right to own and license their name, voice, signature, or likeness for commercial usage by a third party. The law includes varied recognizable aspects associated with the public persona.
While it may seem otherwise, the right of publicity law applies to all persons. You do not have to be a celebrity to enforce a claim. But, while the act is a remedy for any non-celebrity, it is likely to be a tougher fight. Plaintiffs need to prove they suffered mental or financial harm via the commercial misappropriation of their identity. That can be difficult if your public persona is not as strong as, say, a movie actor or country singer.
Copyright infringement vs. right of publicity
California’s Ninth Circuit found an actor’s claim of violating the right of publicity law was preempted by the Copyright Act. Since federal law governs rights to reproduce copyrighted works, the action of the defendant, as alleged by the plaintiff, was an “unauthorized reproduction of his performance on the DVDs” and a “factual basis of his right of publicity claim.” As such, the right of publicity claim was preempted by federal copyright law.
First Amendment vs. right of publicity
Any right of publicity is subject to First Amendment defenses. A defense team may claim if the alleged violation “contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity.”
Overall, right of publicity is a sound way to deal with the unauthorized use of of identity for commercial purposes in California. But it can also be a complicated legal matter that requires significant due diligence.