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The Right to Publicity – What Does it Protect?

Anyone who has watched the news, seen the National Enquirer, or surfed the internet knows that the likenesses, photographs and endorsements of celebrities are used constantly in effort to sell various products to the masses. Usually, the celebrities whose name and images are used for that purpose have agreed to the use and, as a general rule, have been paid handsomely for that use. California, being the home of the movie industry, has long had a common law right of publicity, meaning that one using another’s likeness, name, voice, and signature, among other things, without the consent of the other is committing a tort, creating a liability to compensate for that use. Today, in addition to the common law right of publicity, California has codified the right to publicity in California Civil Code Sections 3344 and 3344.1.

Section 3344 provides: “

[a]ny 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.” California Civil Code Section 3344. Section 3344.1 provides a similar prohibition extending to post-mortem use of the same material. Furthermore, in addition to “any damages sustained” by the injured party, if the plaintiff prevails in an action under Section 3344 or 3344.1, the plaintiff is entitled to his or her attorney’s fees and costs (generally not available to prevailing parties in California).To recover under Section 3344, one likely need not be a celebrity. Some courts have held that to recover under Section 3344, the identity holder must demonstrate that it has “a commercially viable” identity, while other courts have held that the plaintiff must show some “independent value.” Rothman’s Roadmap to the Right of Publicity, Jennifer Rothman 2016, Loyola Law School, Los Angeles. In the event one uses the unauthorized signature of another in connection with a political campaign advertisement, that person has committed “a public offense punishable by imprisonment in the county jail not exceeding 6 months, or pursuant to subdivision (h) of Section 1170, or by a fine not to exceed fifty thousand dollars ($50,000), or by both that fine and imprisonment.” California Penal Code Section 115 (f).

If you believe your name, voice, signature, photograph or likeness has been used without your consent, you need to seek the services of an experienced lawyer to help you understand the law and determine whether you are entitled to damages for that use. Michael Leonard, Esq. of San Diego Corporate Law can assist you with determining whether you may have a claim for that use. To schedule a consultation with Mr. Leonard to discuss your right to publicity, or to discuss any other business-related matter, you can contact him by visiting San Diego Corporate Law or by telephone at (858) 483-9200.

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