If a company uses a person’s photo, voice, or likeness and includes it in their own advertisement without first obtaining consent, they may be violating the person’s right of publicity. In California, there are laws against misappropriating someone’s publicity rights. Unfortunately, not all right of publicity lawsuits are brought in good faith, which is why anyone who has been threatened with this type of litigation should be aware of the best defenses to right of publicity claims. Sometimes, an individual threatens to file a right of publicity complaint simply as a way of pressuring the defendant to pay a quick cash settlement. If this happens to you, it is very important that you speak with a knowledgeable attorney who can honestly assess the situation and help you contest the claim.
What are the best defenses that can be raised in response to a right of publicity claim in California? Keep reading this blog to find out.
What Is California’s Publicity Rights Law?
Some states limit the right of publicity to celebrities, but California has a much more expansive law around this intellectual property right. Any person who knowingly uses someone else’s identity in any manner for products, services, or advertising must have prior consent to do so. The right of publicity usually applies to recognizable aspects of an individual’s identity, such as their image or likeness, their name, their voice, and even a persona that has been created. The statute, California Civil Code section 3344, also stipulates that the person who is injured as a result of the unauthorized use of their image may bring a civil suit for damages.
In order to prevail at trial in a statutory right of publicity lawsuit, the plaintiff must establish all of the following:
- The defendant knowingly used the plaintiff’s identity.
- The defendant’s use of the plaintiff’s identity was for a commercial purpose.
- The plaintiff did not consent to the defendant’s use of their likeness.
What Are the Strongest Defenses to a Right of Publicity Claim in California?
The good news is that the law does give defendants several potential defenses against a right of publicity claim, including the following:
- Freedom of Speech: The use of the plaintiff’s image was protected by the First Amendment.
- Newsworthiness: The use of the plaintiff’s image is allowed because there is a public interest in publication.
- No Misappropriation: There was no misappropriation because the plaintiff’s image was not actually used.
- Group Photo: There was no misappropriation because the plaintiff’s image was part of a group photo.
- Plaintiff’s Consent: The defendant had the plaintiff’s consent to use their image.
- Accidental Misappropriation: The defendant’s misappropriation of the plaintiff’s image was unintentional.
“Freedom of Speech” Defense
One of the strongest defenses available in some right of publicity cases is a First Amendment freedom of speech defense. For example, you may have used the plaintiff’s likeness in a way that added something new and changed the message that would otherwise be conveyed by the likeness. This is known as the “transformative test” because it allows for transformative use of celebrity images, such as parodies that could not possibly be confused with a more straightforward celebrity product endorsement. The idea here is that by incorporating other elements into the image, it becomes a new kind of creative work or artistic expression that qualifies as protected speech under the First Amendment.
There are often First Amendment concerns implicated by a right of publicity lawsuit. This is why you need to be represented a knowledgeable intellectual property attorney who understands the nuances of the law.
“Newsworthiness” or Public Interest Defense
A related defense available in some right of publicity cases is newsworthiness, which is another way of saying that a particular use of the plaintiff’s likeness or persona is valuable to the public because it is of legitimate public concern. Here, the court is likely to balance the right of the plaintiff to maintain some control over the use of their likeness against the public’s right to be informed about important matters. This is known as the public interest defense. Additionally, courts often find that just about any event involving a celebrity is worthy of news coverage. So, the key question in these right of publicity cases will be whether the defendant was truly engaged in journalism, or whether they were using the plaintiff’s image to market or sell something.
In some right of publicity cases, it is not immediately obvious that the plaintiff’s likeness is being used at all. For instance, a book might disguise the identity of the plaintiff by using a different name. This does not necessarily mean that the claim will be dismissed, however, since the plaintiff may still be able to show that the book’s content makes it clear that the character is, in fact, the plaintiff.
In California, defendants in a right of publicity case may be able to raise a defense that they did not violate state law by using the plaintiff’s image when it was part of a group photo. But there is an exception to the group photo defense if the plaintiff’s image was singled out from the rest of the crowd in the photograph.
Another defense that might be available in a right of publicity case is that the defendant had the plaintiff’s consent to use their name, image, or likeness for commercial purposes. Many times, this consent comes in the form of a licensing agreement between the parties. Even in cases where the defendant did misappropriate the plaintiff’s identity, it might be possible for the parties to avoid costly litigation by entering into a licensing deal after the fact.
In a statutory right of publicity claim, the defendant can potentially avoid liability by showing that their misappropriation of the plaintiff’s identity was accidental. That’s because the Celebrities Rights Act, codified in California Civil Code section 3344, requires the plaintiff to prove that the defendant “knowingly used” the defendant’s identity without consent. (Note: This defense is only available to defendants in statutory right of publicity claims. For a common law right of publicity claim, the plaintiff does not need to show that the use of their identity was knowing or intentional.)
Recovering Attorney’s Fees in a California Right of Publicity Case
The defendant in a right of publicity case may be able to recover their attorney’s fees if they prevail on a claim that their use of the plaintiff’s identity constituted protected speech. This is because California has what is known as an anti-SLAPP law. SLAPP stands for “Strategic Lawsuit Against Public Participation,” and it refers to lawsuits that were brought for the purpose of discouraging criticism and chilling speech that is otherwise protected by the First Amendment. When the defendant wins a right of publicity case with an anti-SLAPP motion, the law gives the court the option to award reasonable attorney’s fees to the defendant.
Contact the Los Angeles Right of Publicity Lawyers at Tauler Smith LLP
If you have been accused of violating someone’s right of publicity in California, it is imperative that you act quickly and speak with an experienced Los Angeles right of publicity lawyer immediately. The attorneys at Tauler Smith LLP routinely represent both plaintiffs and defendants in intellectual property cases, so we are often able to anticipate the arguments that the opposing side will make in court and help our clients win the case.