What is the ‘Right of Publicity”?

Most people have heard of well-known categories of intellectual property law such as trademark or copyright, but there is another type that you might not know, and all of us own one – the right of publicity. Don’t be misled by the word “publicity”; this right does not require you to be a celebrity pursued by paparazzi. Rather, it is the right to control the use of your own name or likeness. Even if you are not famous, others cannot use your face, name, or voice for commercial purposes without your permission.

In California, the right of publicity is protected by both common law (law created by court decisions over the course of history) and statutory law (laws passed by the state Legislature). For example, California Civil Code section 3344 states in part that someone using “another’s name, voice, signature, photograph, or likeness” on products or in advertising without that person’s prior consent will be liable for damages suffered by that person. Under the statute, the damages would be the actual damages suffered by the plaintiff, or $750 per unauthorized use, whichever is greater, plus any profits from the unauthorized use that really are attributable to the use. Depending on the circumstances, a court may also award punitive damages to punish the unauthorized user.

To state a claim for common law misappropriation of your right to publicity, you must allege that the defendant used your identity for some advantage (whether commercial or not) without your consent, resulting in injury to you. For a claim under Civil Code section 3344, you must allege those same elements, and you also must allege that the defendant’s use was “knowing” use (meaning that the defendant knew that it did not have permission to use your name, face, etc.) for commercial purposes, and that there was a direct connection between the use and the commercial purpose. The “direct connection” requirement means that, for instance, a teenager could not successfully bring this claim against the makers of a movie about a fictional 65-year-old man who happened to share the teenager’s name; such a movie would not be about the teenager, and use of the teenager’s name would not serve any commercial purpose for promoting the film (it might be a different case if that teenager was actually famous, such that his name might attract interest to the film).

A plaintiff must also allege some sort of injury due to the use of his or her name, image, etc. If you happen to be famous, then the unauthorized use of your name may be a true financial injury, in that you are being robbed of the money which you could otherwise demand for your endorsement, and the unauthorized use may be damaging to your personal “brand”. If you do not happen to be famous, you must at least allege that you have suffered “mental anguish” caused by seeing your identity used without your permission to promote a product or service.