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What is the right of publicity and how can it protect you?

Posted by Johnson & Johnson, LLP | Apr 08, 2019 | 0 Comments

What is the right of publicity and how can it protect you?

Article by Neville Johnson and Douglas Johnson

In today's world, the idea of celebrity is quickly evolving. With viral videos and social media influencers in the mix, people can become famous quickly and for activities that never used to have that effect. With that fame comes a few changes to how you are treated under the law. Just because someone is famous does not mean they lose the ability to protect their intellectual property, their likeness and their image. Just because you're famous does not mean that any copycatter has the right to use your face in their advertising. Advertisers can't appropriate your name or likeness for commercial gain The right of publicity protects creators from unauthorized use of their name or likeness by third parties for commercial purposes. The exact protections vary by state but, in California, our right of publicity statute protects your name, voice, signature, photograph and likeness from unauthorized use for commercial or exploitative purposes. California also recognizes a right to publicity in common law. Specifically, the statute protects your voice, although perhaps not an imitation of your voice. It protects both still and moving images of you, as long as you are “readily identifiable.” Crowd scenes do not violate your right to publicity unless you are singled out. It also protects your “readily identifiable” likeness, meaning that a third party generally couldn't use a readily identifiable drawing of you in their advertising. The statute prevents advertisers from knowingly using your name or likeness, without permission, for advertising purposes when there is a direct connection between the use and the commercial use. It is not enough that your name or likeness is often used in connection with a product or service but not for any particular party's gain. California law continues to prohibit the unauthorized use of your voice, image or likeness even after you die. A separate statute protects your name and likeness for 70 years after your death, and your right to publicity can be sold, licensed and inherited. However, the owner must register their right of publicity claim with the Secretary of State, and there are other qualifications. Common law applies as well in California If the right to publicity statute doesn't protect you well enough, you can also point to a common-law right. Here, the protection is not limited to your name, voice, signature, photograph or likeness, but covers your identity generally. You can sue for damages after an appropriation of your right to publicity, as long as:

  • The defendant used your identity
  • The appropriation was for commercial or other advantage
  • You did not consent
  • You suffered injury, such as financial or reputational injury

If successful, you could obtain compensation for your damages and also any profits attributable to the appropriation. In addition, punitive damages may be awarded to punish the defendant in cases of oppression, fraud or malice. Finally, the successful party receives reimbursement for their attorney fees. There is a two-year statute of limitation on right to publicity claims, whether they are brought under statute or common law. A right to publicity claim is no substitute for a copyright claim The right to publicity has some similarities to copyright law, but copyright is federal. That means that, if your right to publicity claim is too similar to a copyright claim, the court might dismiss your claim and have you re-file it under federal copyright law. If you believe your right to publicity has been violated, or if you wonder whether you have a valid copyright claim, contact an experienced intellectual property attorney.

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