Experienced Irvine right of publicity lawyers understand that many artists put time, energy, and financial resources into establishing and then growing their personal brands. When someone comes along and steals that brand by using it in an unauthorized advertisement, the artist’s intellectual property rights can be adversely affected. This can happen to actors, models, musicians, or just about anyone else in the entertainment industry, and it can do real damage. The same is true when the affected person is a non-celebrity, particularly in the social media era when Facebook, Twitter, and Instagram can all be profitable ways of cultivating and monetizing your identity. The good news is that California has broad protections for an individual’s right of publicity, and these protections provide both celebrities and non-celebrities with a legal cause of action when someone uses their image, voice, or likeness without consent.

If your image, voice, or other aspect of your identity was taken by someone else and used without your permission, an experienced Irvine trial attorney at Tauler Smith LLP can assist you.

What Is California’s Right of Publicity Law?

Copyrights protect creative works of art, trademarks protect brand identifiers, patents protect registered inventions, and trade secrets protect proprietary information that has not been registered. By contrast, the right of publicity is a more personal type of IP right that protects an individual’s identity.

The statute that explicitly safeguards an individual’s publicity right is California Civil Code Section 3344(a), and it states the following:

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, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.

If someone uses your name, photograph, likeness, voice, or signature without your consent, and that use occurs in a commercial context, the statute allows you to sue for any damages you may have suffered. Additionally, you have another option to bring a right of publicity claim under common law.

Filing a Common Law Right of Publicity Claim in Irvine, CA

A key difference between a statutory violation and a common law violation when it comes to right of publicity cases is that only the statute requires a plaintiff to prove that the defendant “knowingly” misappropriated their identity. By contrast, a plaintiff who files a right of publicity claim under common law can still win the case even if the defendant mistakenly or accidentally misappropriated their identity.

In common law right of publicity cases, Irvine courts ask the following four (4) questions to determine whether the plaintiff’s publicity rights were misappropriated:

  1. Was the plaintiff’s identity used by the defendant?
  2. Did the defendant use the plaintiff’s identity to gain a commercial benefit or any other advantage?
  3. Did the defendant fail to get consent from the plaintiff for use of their identity?
  4. Did the plaintiff suffer injury because of the unauthorized use of their identity?

Damages Available in Irvine Right of Publicity Cases

The damages in an Irvine right of publicity claim can include:

  • An injunction to stop the unlawful use.
  • Actual damages suffered by the plaintiff.
  • Profits gained by the defendant from the unlawful use.
  • Punitive damages in cases involving oppression, fraud, or malice.
  • Attorney’s fees and other legal costs associated with the lawsuit.

In common law right of publicity cases, the court may award damages to compensate the plaintiff for the commercial value of their likeness. Additionally, the court may order the defendant to pay damages for any reputational harm suffered by the plaintiff because of the unauthorized use of their likeness, as well as monetary compensation for emotional distress caused by the use.

How Much Time Do You Have to File a Right of Publicity Claim in Irvine?

The plaintiff in a right of publicity case should expect the defendant to make strong arguments in their defense. One such argument that you may need to be ready for is that the statute of limitations has expired. Importantly, the applicable statute of limitations applies to both statutory and common law claims.

California law gives individuals only two (2) years to file a lawsuit alleging a violation of their right of publicity. The clock typically starts ticking as soon as the defendant publishes or uses the plaintiff’s image in an advertisement. There are, however, situations in which the plaintiff may have longer to bring a right of publicity claim. For example, if the plaintiff did not realize that their image had been unlawfully used, then the clock would only start once the plaintiff actually does learn about the use. The key question that the court will ask in these cases is: would a reasonable person in the shoes of the plaintiff have discovered the publication earlier?

Irvine Trademark Claims & Right of Publicity Claims

When a commercial or advertisement includes a famous person’s image without permission or license to do so, it could be a violation of the Lanham Act. This is a federal statute that protects individuals against misuse of a trademark. In the case of a celebrity whose identity is misused for commercial purposes, this could be considered a false endorsement because it confuses consumers by misleadingly associating the celebrity with the product or service being advertised. Since the celebrity has an economic interest in controlling when and how their identity is used and commercially exploited, they may be able to bring a false endorsement claim under the Lanham Act.

About Irvine, California

Irvine is a major city located in Orange County, California. The city’s population has been steadily growing for several decades, and there are currently more than 300,000 people who live there. Irvine’s residential population in 1980 was almost entirely white, but these days the city has a significant Asian-American population: roughly 45% of all people who reside in Irvine are Asian. In fact, Irvine is the largest city in the continental U.S. with an Asian-American plurality.

Irvine is surrounded by a number of other municipalities, including Laguna Hills, Orange, Santa Ana, and Tustin. Irvine is also within 40 miles of Los Angeles, which makes it a popular place for people who are looking to commute to L.A. for work.

Free Consultation with the Irvine Right of Publicity Attorneys at Tauler Smith LLP

California’s right of publicity law gives individuals the sole ability to control aspects of their identity for commercial use. This means that only you are allowed to profit from your image, name, voice, likeness, etc. If someone has misappropriated your identity in any way, you have legal options. Contact the Irvine publicity rights attorneys at Tauler Smith LLP today. You can call 310-590-3927 or send an email to schedule a free initial consultation.