The right of publicity is codified in California Civil Code Sections 3344 and 3344.1. In California, 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 without prior consent, is liable for damages.” Cal. Civ. C. § 3344 (a).
RIGHT OF PUBLICITY – ELEMENTS
What elements are needed to prove a ROP claim? To prove a claim for violation of ROP in court, a claimant typically must prove the following:
- The defendant knowingly used the plaintiff’s name, voice, signature, photograph, or likeness on merchandise or to advertise or sell certain goods.
- The use did not occur in connection with a news, public affairs, or sports broadcast or account, or with a political campaign;
- The defendant did not have the plaintiff’s consent;
- The defendant’s use of the plaintiff’s name/voice/signature/photograph/likeness was directly connected to a commercial purpose of the defendant;
- Plaintiff was harmed as a result; and
- The defendant’s conduct was a substantial factor in causing the plaintiff’s harm.
RIGHT OF PUBLICITY – DAMAGES
What types of damages are available when ROP is infringed?
Damages for a ROP case can include:
- Humiliation, embarrassment, and mental distress, including any physical symptoms;
- Harm to the plaintiff’s reputation;
- Other items of plaintiff’s claimed harm.
In addition, the plaintiff may recover any profits that the defendant received from plaintiff’s ROP that have not already been taken into account with regard to the above damages.
To establish the amount of these profits, a plaintiff must do the following:
- Determine the gross, or total, revenue that the defendant received from the use;
- Determine the expenses that the defendant had in obtaining the gross revenue; and
- Deduct the defendant’s expenses from the gross revenue.
The burden to prove the amount of gross revenue is on the plaintiff; whereas the burden to prove the amount of expenses is on the defendant.
Attorney Michael A. Long is experienced as replacement counsel. He has represented attorneys, executives, business owners, producers, tech companies, engineers, inventors, employees, employers, and established multinational clients with worldwide IP portfolios.
ROP Infringement – Right of Publicity Cal. Civ. C. 3344 and 3344.1
If you are considering suing for wrongful use of your name or likeness without permission for commercial purposes, there are several issues you should be aware of before proceeding with your case.
The right of publicity is a type of intellectual property right. It is the right to control the use of one’s name and likeness in commercial advertising or for purposes of trade. The California Right of Publicity statute (Civil Code Section 3344) provides that an individual has the exclusive right to use his or her name, voice, signature, photograph or likeness for advertising purposes or for the purpose of trade without consent. In addition, Civil Code Section 3344.1 provides that where there is no contract between an individual and a business that uses their name, voice signature photograph or likeness without consent for purposes of advertising or trade; and there is a rebuttable presumption that such use was done without consent if such person has not previously authorized such use by contract.”
The right of publicity is the right of an individual to control the commercial use of his or her name, likeness, or other indicia of identity for commercial purposes. It is a property right that belongs to the individual rather than to the employer or creator of a work.
If you believe someone has infringed upon your rights under Civil Code Section 3344, it will be important for you to contact an experienced entertainment litigation attorney who can help protect those rights in court if necessary.
What is the difference between the right of publicity and other intellectual property rights?
The right of publicity is a property right, not a copyright or trademark. It is also different from patents and trade secrets. Unlike patents and copyrights, which grant exclusive rights to their owners for limited time periods, the right of publicity is perpetual in nature. Note that U.S. trademarks have the potential to last indefinitely if properly maintained.
There are other laws besides the right of publicity that separately delineate the scope and protections of intellectual property:
- Copyright law
- Trademark law
- Right of publicity law
- Trade Secret law
- Patent law
The above laws each have different scope; different ways to obtain protection; different requirements to be able to start a court action or to prove the case; different or overlapping affirmative defenses; and can provide different remedies if and when infringed. For example, if you want to use someone’s photo in your film or book without their permission, copyright law protects your work from being infringed by giving you the exclusive right over its use and distribution. On the other hand, if someone is using your image without permission then you can sue them under Civil Code Section 3344 (or 3344.1) which provides monetary damages as compensation for the misappropriation of one’s identity.