Pet Right of Publicity Claims

Do Pets Have a Right of Publicity in California?

Pet Right of Publicity Claims

Is there a right of publicity for animals? More specifically, do pets have a right of publicity in California? These may seem like silly questions at first glance, but the answers could be very important if you have a pet with a social media presence. These days, it is not uncommon for people to create social media accounts on Instagram, Facebook, Twitter, or Pinterest where they post daily photos of their pets. These accounts can be incredibly popular and often gain hundreds or even thousands of followers. Depending on the circumstances, it may be possible to monetize the accounts through online advertisements, merchandising agreements, and/or licensing deals. This is where the right of publicity would theoretically apply to the pet whose photographs, videos, and other images are posted on the internet.

To learn whether you can file a California right of publicity claim for misappropriation of your pet’s image, keep reading this blog.

California Right of Publicity Claims for Pets

There has yet to be an instance of a California court ruling that pets have a right of publicity under the law. This could leave you exposed to misappropriation of your pet’s identity by others who wish to take your photos and use them for their own commercial purposes.

The good news is that there are still ways to protect your rights in these situations. For example, you may be able to obtain copyright protection for photographs of your pet. Additionally, you may consider trademarking your pet’s name if that name is unique. (E.g., Davey the Dog.) With copyright or trademark protection, you would potentially have the option to file a lawsuit for intellectual property infringement if anyone ever used your pet’s image without authorization.

Statutory Protections for an Individual’s Right of Publicity in California

Of course, California’s right of publicity law does apply to humans. Statutory protections for the right of publicity are set forth in the Celebrities Rights Act, which can be found in California Civil Code Section 3344. The law protects individuals against the infringement of their publicity rights, which means that no one can use another person’s identity for commercial purposes unless the IP holder consents to it.

The statute explicitly protects five (5) aspects of your identity against unlawful commercial exploitation:

  1. Name
  2. Photograph or Image
  3. Likeness
  4. Voice
  5. Signature

An experienced right of publicity lawyer can make sure that your image, name, and voice are protected against unlawful use by others. This is extremely important because these aspects of your identity may have significant monetary value. When someone takes your likeness without permission, they are also taking away your ability to receive recognition and compensation that you are entitled to. Worse yet, if someone uses your likeness in the wrong context (e.g., an advertisement for a product or service with a bad public image), it could adversely affect your ability to earn money in the future.

Common Law Right of Publicity Claims

California recognizes both a statutory right of publicity and a common law right of publicity. This means that plaintiffs have options when deciding to file a lawsuit for right of publicity misappropriation.

California’s statutory protections for the right of publicity are limited to a person’s name, signature, voice, photograph, and likeness. This means that when a plaintiff wants to bring a right of publicity lawsuit for misappropriation of some other aspect of their identity, they will need to do so through a common law right of publicity claim. The good news for plaintiffs is that courts in these cases often use a broad definition of the right of publicity so that it includes things that go well beyond a literal photo of the plaintiff. For example, courts have found that the use of a voice that is meant to imitate a celebrity’s voice may constitute an unlawful misappropriation.

California’s Publicity Rights Law Protects Both Celebrities & Non-Celebrities

Although the right of publicity was once thought to be limited to celebrities and their heirs, this has changed in recent years as social media and reality television have exploded to give many more people an interest in their public image. These days, anyone with a Twitter or Instagram account may be considered a “social media influencer” who is able to monetize their persona and generate substantial income through online advertising. This makes it important for these individuals to protect their right of publicity when someone misappropriates it. The good news is that California’s right of publicity law has strong protections for both celebrities and non-celebrities.

Free Consultation with Los Angeles Right of Publicity Lawyers

If someone has used a photo of your dog, cat, or other pet without permission, they may have violated your legal rights. The same is true if someone has used your likeness in an advertisement without first obtaining your consent. Your next step should be to speak with a Los Angeles right of publicity attorney. The lawyers at Tauler Smith LLP understand this area of the law because we regularly represent clients in both state and federal courts on matters involving intellectual property.

Call our legal team today at 310-590-3927 or email us to schedule a consultation.

Right of Publicity Defenses

Best Defenses to Right of Publicity Claims

Right of Publicity Defenses

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:

  1. The defendant knowingly used the plaintiff’s identity.
  2. The defendant’s use of the plaintiff’s identity was for a commercial purpose.
  3. 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.

No Misappropriation

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.

Group Photo

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.

Plaintiff’s Consent

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.

Accidental Misappropriation

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.

Call us at 310-590-3927 or send an email to schedule a free initial consultation.

California Right of Publicity Damages

Damages Available in Right of Publicity Claims

California Right of Publicity Damages

You may have worked very hard on your public image, especially if you use that image to generate revenues through a brand or persona that you publicize online. When someone takes your carefully cultivated image without permission, they are stealing your hard work to make money for themselves. Moreover, their actions could be causing significant harm to your image by associating it with a product or service that you do not want to be associated with. The good news is that California law provides you with legal options in these situations, and there are powerful remedies and substantial damages available in right of publicity cases. Additionally, when the plaintiff is successful at trial, the court may also order the defendant to pay attorney’s fees and legal expenses for both sides.

To learn about your options for pursuing damages with a California right of publicity claim, keep reading this blog.

Statutory Damages Available to Plaintiffs in California Right of Publicity Cases

The right of publicity is explicitly protected by the Celebrities Rights Act, and damages for right of publicity violations are set forth in California Civil Code Sec. 3344(a). The law states that any person who misappropriates someone else’s right of publicity “shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.” The statute also allows for the awarding of punitive or exemplary damages to the party whose right of publicity was violated when the defendant engaged in oppression, fraud, or malice.

The statutory damages in a right of publicity claim can add up very quickly because the plaintiff can sue for each unlawful use of their likeness or persona. Another very important factor when determining damages in a right of publicity case is the total amount of money that the defendant earned or profited from use of the plaintiff’s likeness.

Determining Actual Damages in a California Right of Publicity Claim

It is not always easy to establish an exact amount for actual damages in a right of publicity claim because the value of a person’s name or likeness isn’t obviously quantifiable. This is one way in which right of publicity differs from other intellectual property rights like copyright, trademark, or patent, which commonly involve commercial products or services and reportable revenues.

Some factors that the court may consider when determining damages in a right of publicity lawsuit include the following:

  • The plaintiff’s level of fame.
  • How much money the plaintiff has earned from their likeness in the past.
  • Previous contracts and licenses that include royalties.
  • Whether the plaintiff’s publicity rights have already been licensed. (Unlicensed rights might have more value.)
  • How much money the defendant made from their use of the plaintiff’s likeness.

Punitive Damages in Right of Publicity Cases

The punitive damages question comes after the court has already decided that the defendant misappropriated the plaintiff’s publicity rights. At this point in the case, the court is now left to determine exactly how much money to award the plaintiff. The key issue for the court is whether the defendant committed malice, oppression, or fraud. California law defines these terms as follows:

  • Malice: There are two (2) ways that a defendant can be found to have acted with malice. The first definition of “malice” is any conduct which the defendant intended to cause injury to the plaintiff. The second definition is any despicable conduct which the defendant engaged in with conscious disregard of the rights or safety of other people.
  • Oppression: The statute defines “oppression” as despicable conduct that consciously disregards another person’s rights and that causes cruel and unjust hardship for that person.
  • Fraud: An individual commits fraud when they use an intentional misrepresentation, deceit, or concealment of a material fact for the purpose of depriving someone else of property or legal rights, or for the purpose of causing injury.

The basis for punitive damages awards in publicity law cases actually comes from another statute: California Civil Code 3294. That law stipulates that in any case not involving a contract breach, the plaintiff may be eligible for punitive damages in addition to actual damages. Cal. Civ. Code 3294(a) states that when the defendant has been guilty of oppression, fraud, or malice, the plaintiff “may recover damages for the sake of example and by way of punishing the defendant.” The idea behind punitive damages is that the defendant’s conduct has been so egregious that they deserve to be punished in some way that goes beyond the actual injury or harm caused. Moreover, punitive damages awards have a deterrent effect in that they serve as a reminder to other people that they should not violate the law in the future.

Exception to Punitive Damages

There are strong defenses that can be raised in right of publicity cases, including an exception for punitive damages that may be available to some employers. That’s because Cal. Civ. Code Sec. 3294(b) stipulates that when a right of publicity misappropriation was committed by an employee of the defendant, the defendant-employer will not be liable unless the plaintiff can show that the employer had certain advance knowledge. For instance, the plaintiff must prove to the satisfaction of the court that the employer knew that the employee who would later go on to violate the plaintiff’s right of publicity was, in fact, unfit for the position. For corporate employers, the plaintiff must show that the advance knowledge was possessed by an officer, director, or managing agent of the corporation. Additionally, an employer can still be liable for punitive damages if they were personally guilty of oppression, fraud, or malice, as those terms are defined in the statute.

Other Remedies Available in Right of Publicity Claims

Plaintiffs with possible right of publicity claims may also be able to pursue remedies through different statutes. California Civil Code Section 3344(g) explicitly states that these remedies are cumulative “and shall be in addition to any others provided for by law.” This opens the door for plaintiffs to bring other civil suits in addition to the right of publicity lawsuit.

Additionally, one important consideration for plaintiffs in a right of publicity case is whether the defendant has insurance coverage. That’s because a lot of publicity rights claims involve defendants with insurance companies that will ultimately pay out any settlement or damages award issued by the court.

Contact the Los Angeles Right of Publicity Attorneys at Tauler Smith LLP

Your identity could have significant monetary value in the internet era, especially if you are an influencer on social media platforms like Instagram, Facebook, Twitter, Pinterest, YouTube, or Vimeo. You never know when your image or likeness might be sought for online advertisements. If someone has used your identity without permission, the experienced Los Angeles right of publicity lawyers at Tauler Smith LLP can help you take legal action.

Call 310-590-3927 or email us to schedule a free consultation.