The right of publicity is a potentially valuable type of intellectual property, which is why it can be so harmful when someone misappropriates your publicity rights. How does a right of publicity violation occur? It can happen when an actor, model, social media influencer, or any other person has their photograph published somewhere, such as a billboard, magazine advertisement, or Instagram account. In California, everyone has a legal right to control whether their own identity is used for commercial purposes. When someone else exploits your identity without permission and for their own benefit, experienced Los Angeles right of publicity lawyers may be able to help you file a right of publicity claim in court and get financial compensation.
What Is a “Right of Publicity”?
Although copyrights, trademarks, patents, and trade secrets are commonly thought of as the most traditional kinds of intellectual property rights, there is also an important IP right known as “the right of publicity.” California law protects a person’s right to profit from their own identity, which has taken on greater significance in the internet age. These days, social media allows just about anyone to create their own personal brand and then use that brand to market products, services, and even ideas. This is even more true now that reality television has exploded in popularity, since more and more “average” people (and even their pets!) are seen by millions as celebrities.
In order to bring a claim for right of publicity infringement, the plaintiff must show that at least one aspect of their identity has been used for some commercial benefit by the defendant. These aspects may include the plaintiff’s name (including their actual name, nickname, or pseudonym), image (in a photograph or video), voice, signature, or any other facet of their likeness. In California, the right of publicity is governed by both state law (statutes passed by the legislature) and something known as common law (legal precedent based on court rulings).
Social Media Platforms and the Right of Publicity
Advances in technology have made it easier for unscrupulous individuals to access and replicate the unique aspects of a person, such as the sound of their voice or how they look. At the same time, the internet has made it easier than ever for unethical companies to proliferate these likeness rights. For example, a company that wants to make it seem like Tom Cruise has endorsed their product can simply copy his image from a photo and insert that image into their online ads.
As social media platforms like Instagram, Facebook, Twitter, and YouTube have increased in popularity, there has been a rise in claims alleging right of publicity misappropriation. Importantly, California’s publicity rights law doesn’t just apply to actors, models, singers, social media influencers, and other celebrities. Every person is entitled to legal protection when it comes to the commercial exploitation of their identity or persona, whether that protection comes in the form of a publicity rights claim or an invasion of privacy claim.
California’s Statutory Right of Publicity Law
California’s right of publicity law is called the Celebrities Rights Act, and it applies to any living person whose likeness has commercial value. The statute provides some of the strongest IP protections in the entire country. This was lawmakers’ way of recognizing that there are a lot of celebrities in the state, particularly in Hollywood where movies and television shows are made.
Cal. Civ. Code Section 3344 does not just protect celebrities whose images have been used to market products. In fact, the law also allows non-celebrities to recover money damages for the unauthorized use of their image. Moreover, the law is broad in scope, giving individuals complete control over how their identity can be used or exploited for commercial purposes.
Common Law Right of Publicity Claims in Los Angeles
In addition to the California statute that explicitly prohibits third parties from using a person’s likeness without permission, there is also a common law right of publicity. This means that even without reference to the statute, an individual can file a right of publicity lawsuit when the defendant has used their identity without authorization, the defendant benefitted from that use, and the defendant caused injury to the plaintiff. Additionally, a common law right of publicity claim is not limited to instances in which the defendant used the plaintiff’s image or voice for a commercial purpose leading to a financial benefit. If the defendant used the likeness for any purpose and gained an advantage of any kind, they can be sued.
In order to prevail in a common law right of publicity claim, the plaintiff must prove all of the following:
- The defendant used the plaintiff’s identity.
- The defendant benefitted either commercially or in some other way from that use.
- There was no agreement between the plaintiff and the defendant.
- The plaintiff sustained an injury as a result of the unauthorized use.
Damages in Los Angeles Right of Publicity Cases
The California right of publicity law provides plaintiffs with statutory remedies when they prove their case in court. The most significant remedy is usually damages, with the statute allowing the individual whose publicity rights were infringed to get a monetary award equal to any profits that the defendant obtained through their unlawful use of the individual’s image, voice, or other aspect of their likeness. (One limit to a right of publicity lawsuit is that the plaintiff must show that there were at least $750 in damages before they can bring a claim.)
Since damages are not always easy to quantify in a right of publicity claim brought by a non-celebrity, California lawmakers also included statutory damages in Cal. Civil Code section 3344(a). This allows successful plaintiffs in right of publicity lawsuits to recover either actual damages or statutory damages in the amount of $750 for each unauthorized use. Additionally, the law gives plaintiffs the ability to recover their attorney’s fees and related legal costs when they win at trial.
What Is the Statute of Limitations for Publicity Rights Claims in California?
It is imperative that you act immediately when you discover that someone has used your image or likeness to sell or market products without your consent. That’s because California’s law on the right of publicity includes a statute of limitations: you will have just two (2) years to bring a claim. You need to speak with a qualified Los Angeles publicity rights lawyer immediately because the clock starts ticking the moment you learn about the unauthorized use of your identity. In fact, this can often be a point of contention in a lawsuit, with the other side arguing that you knew about the right of publicity violation long ago and that your legal claim should now be barred from moving forward.
Trademark Claims and the Right of Publicity in California
Although rights of publicity are explicitly established by California state law, they can also be connected to federal trademark claims that are filed under the Lanham Act. This may happen when a celebrity registers their name or likeness with the U.S. Patent and Trademark Office (USPTO). Since celebrities (and some non-celebrities) might have trademarked certain aspects of their identity for branding purposes, the unauthorized use of a person’s identity in an advertisement could constitute a trademark infringement in violation of federal law.
Both right of publicity claims and trademark infringement claims allow the plaintiff to recover damages that may include compensatory relief in the form of money damages, an injunction ordering the defendant to stop the infringement, punitive damages when the defendant’s actions were intentional and egregious, and attorney’s fees and related costs of the lawsuit.
Call the Los Angeles Right of Publicity Attorneys at Tauler Smith LLP
The experienced Los Angeles intellectual property lawyers at Tauler Smith LLP can protect your publicity rights against unlawful misappropriation. In some cases, we can also help you license your name, image, and other aspects of your identity for use by others. Call 310-590-3927 or email us to schedule a free consultation.