Right to Publicity/Licensing agreements

Do you need a contract or licensing agreement to allow you to use this individual’s name?  If you don’t have an agreement in place, what potential claims do you face?  

In California, you need a licensing agreement or a release in order to use the name or likeness of another individual.  Without a licensing agreement or release, you face two distinct legal claims that apply to this unauthorized use: (1) violation of the right of publicity and (2) invasion of privacy through misappropriation of name or likeness (“misappropriation”).  Only human beings, not corporations, can sue for the unlawful use of name or likeness (companies can sue for trademark infringement and unfair competition if you exploit their brand names for commercial purposes).  

1. What is the right of publicity?

California has both a common law and a statutory right of publicity which protects a  person’s right in his or her name and likeness.   Specifically, Cal. Civ. Code § 3344, protects a person’s:

• Name
• Voice
• Signature
• Photograph, and
• Likeness.  

The statutory cause of action prohibits “knowing” use of a person’s name, likeness, etc. “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.”  Cal.Civ. Code § 3344(a).  The mere fact that a person’s likeness is used in connection with a commercial product or service does not violate the statute.  Rather, the statute focuses specifically on advertising uses of a person’s likeness.

California’s common law right of publicity involves a four-step test in which a plaintiff must allege:

1. The defendant’s use of plaintiff’s “identity;”
2. The appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise;
3. Lack of consent; and
4. Resulting injury.

A plaintiff can simultaneously pursue claims for both the statute and the common law.  Cal. Civ. Code §3344(g).  Under the statute, a plaintiff can recover for “actual damages suffered” as well as any of the defendant’s profits that are “attributable to the use.”  A plaintiff may also recover punitive damages under the statute.

1. What is misappropriation?

In order to hold someone liable for unauthorized use of a name or likeness, a plaintiff must establish three elements:

1. Use of a protected attribute:  The plaintiff must demonstrate that the defendant used an aspect of his or her identity that is protected by the law.  Most often, this means a plaintiff’s name or likeness but the law protects certain other personal attributes.

1. For an exploitative purpose:  The plaintiff must demonstrate that the defendant used his name, likeness or other personal attributes for an exploitative purpose.  The use of someone’s name or likeness for new reporting or other expressive purposes is not exploitative as long as there is a reasonable relationship between the use of the plaintiff’s identity and a matter of legitimate public interest.

1. Lack of Consent:  The plaintiff must demonstrate that he or she did not give permission for the offending use.  Consent is a complete defense to a legal claim for misappropriation of name or likeness.  

3.  If you want to use someone’s name or likeness, how can you avoid a potential lawsuit?

In order to avoid a potential lawsuit, the best idea is to get permission from everyone you use in advertising, not just celebrities.  Prior to using anyone’s image, have the person in question sign a licensing agreement (if they want to be compensated for the use of their image) or a basic contract with a release (if they are not looking for compensation) giving you permission to use their name or likeness to promote yourself.  Make sure that any agreement spells out your rights in clear and succinct language and that both parties have the opportunity to consult with attorneys if they so desire.  It is highly advisable that you retain experienced and knowledgeable legal counsel to avoid potential liability.  To schedule a free consultation with a seasoned attorney contact Gohar Abelian of the Abelian Law Firm at (818) 588-5337.

‍