Artists who put their hearts and souls into their work know just how valuable the final product can be. This is also true for social media influencers who carefully cultivate their online content and develop a personal brand. But what happens when someone steals that brand by using it on a website or in an advertisement without permission? This is a question that San Diego right of publicity lawyers are often asked. The answer usually involves a discussion of relevant intellectual property laws that can be used to protect the individual’s right of publicity against misappropriation. Whether you are an actor, model, singer, or just a regular person with a growing social media presence, you may need to avail yourself of California’s strong protections for publicity rights if someone steals your photo, voice, or likeness for their own commercial purposes.
The experienced San Diego litigators at Tauler Smith LLP can help you with your publicity rights claim.
California Law Protects Your Right of Publicity Against Misappropriation
When it comes to intellectual property, most people think of copyrights that protect artistic works, or trademarks that protect personal or company brands, or patents that protect inventions registered with the USPTO, or trade secrets that protect a company’s confidential information. One very important type of intellectual property that doesn’t always come to mind is the right of publicity, which protects a person’s identity or likeness against unauthorized use.
In California, the law that addresses publicity rights is found in California Civil Code Section 3344. The statute explicitly states that “any person who knowingly uses another’s name, voice, signature, photograph, or likeness” for commercial purposes must have prior consent to do so. The law further states that anyone who misappropriates the right of publicity “shall be liable for any damages sustained by the person or persons injured as a result thereof.” This means that you may be able to sue for money damages under the statute.
Common Law Right of Publicity Claims in San Diego
Another option for someone whose publicity rights have been infringed in San Diego is to file what is known as a “common law” right of publicity claim. One of the main differences between statutory claims and common law claims is that only a statutory claim requires the plaintiff to show that the defendant “knowingly” misappropriated their likeness. In a common law right of publicity claim, the plaintiff can prevail at trial even if the defendant’s infringement was accidental. (E.g., the defendant mistakenly believed that they had permission to use the plaintiff’s image in an ad.)
When determining whether the defendant infringed on the plaintiff’s publicity rights, San Diego courts typically ask these questions:
- Did the defendant use the plaintiff’s likeness?
- Was the likeness used for a commercial benefit or for any other advantage?
- Did the plaintiff consent to the use of their likeness?
- Was the plaintiff injured in some way by the unauthorized use of their likeness?
Damages & Remedies in San Diego Right of Publicity Cases
There are several different types of damages potentially available to plaintiffs in San Diego right of publicity cases. Depending on the circumstances of your case, you may be able to pursue the following remedies:
- Injunction: The court can order the defendant to stop using your likeness.
- Actual Damages: These damages would compensate you for any losses or harm you suffered.
- Profits: The defendant would be required to pay you any profits they made from use of your likeness.
- Punitive Damages: If the defendant’s use of your likeness involved oppression, fraud, or malice, the court can order them to pay additional punitive damages.
- Attorney’s Fees: The defendant could be required to pay your legal expenses.
Statute of Limitations for San Diego Publicity Rights Claims
If you are thinking about filing a right of publicity claim in San Diego, you need to be ready for the possible defenses that could be raised in opposition to your legal claim. For instance, one possible defense in a publicity rights case is that the statute of limitations has expired. Since the statute of limitations applies in both statutory right of publicity claims and common law right of publicity claims, your case could be over before it even starts.
Under California law, you have just two (2) years to bring a lawsuit for right of publicity misappropriation. In most cases, the clock starts when the defendant first uses your likeness. But there are situations where the plaintiff might have more time to file their claim. If you did not know that your likeness was being used by the defendant, and the court finds that a reasonable person would not have known either, then the clock won’t start until you actually did find out about the unlawful use or publication.
Can You File Both a Trademark Claim & a Right of Publicity Claim?
There can be some overlap between a right of publicity claim and a trademark claim under the federal Lanham Act. This often occurs in cases involving a celebrity whose likeness is used without permission. Since celebrities can generate substantial revenues from their personal brands, it may be important for them to not have their brand associated with certain kinds of products or services. But what happens when a company uses the celebrity’s image to make it appear as though they are endorsing one of those products? This is a type of false endorsement that could confuse consumers and cause significant harm to the celebrity’s image. Anyone whose image or likeness has been used in this way may want to consider filing a false endorsement claim.
San Diego, CA
San Diego is the county seat of San Diego County, California. In recent years, San Diego residents have enjoyed great financial success: the city ranks among the wealthiest in the United States. With its location on the coast of the Pacific Ocean and the presence of several military bases, San Diego has strong ties to the United States Navy and the Marine Corps. The city is also home to the world’s largest naval fleet. These military and defense connections drive a significant part of the city’s economy, providing roughly 25% of all jobs in San Diego.
Contact the San Diego Publicity Rights Attorneys at Tauler Smith LLP
California’s broad protections for the right of publicity mean that both celebrities and non-celebrities have the right to control how their images are used for commercial purposes. If someone has misappropriated your likeness, image, name, or voice, you need to speak with one of the knowledgeable San Diego right of publicity attorneys at Tauler Smith LLP.
Call us at 310-590-3927 or email us to schedule a consultation.