If someone attempts to profit from your name or image without your consent, this can pose a serious issue. You may think that you aren’t “famous” enough for this to happen. However, this issue arises even with those who are not well-known, which is why about half of the states in the US, including Florida, California and New York recognize a right of publicity.
What Is the Right of Publicity?
The right of publicity refers to an individual’s right to control the commercial use of his or her name, image, likeness or other similar aspects of the individual’s identity. It is not protected by federal law but some states do recognize the right.
Is There a Right of Publicity in California?
California Civil Code Section 3344 protects the right of publicity of natural living persons. This includes their name, voice, signature, photograph (including photographic reproduction, still or moving; video; and live TV) and likeness.
There is also a common law right of publicity for natural living persons that encompasses anything that evokes a person’s identity. California additionally recognizes a separate common law invasion of privacy by appropriation tort.
Caveats to California Law
California business entities do not have a right of publicity under statutory law. However, California courts have not addressed whether business entities may have a common law right of publicity.
There is a right of publicity for deceased individuals that can be enforced by heirs and assignees under the Astaire Celebrity Image Protection Act. However, it is limited to natural persons who have a protected aspect of identity with commercial value. The law is not restricted to celebrities and does not require that the individual exploited their rights during their lifetime. The right lasts 70 years after the death of a deceased personality and applies retroactively to any natural person who died within the 70-year period before January 1, 1985.
In the case of minors, a parent or legal guardian must give prior consent (written or not) to use of the minor’s publicity rights. In California, members of the armed services do not have a special right of publicity.
The statutory exemptions in California for both living and postmortem use include using the name or likeness as part of:
- News reports
- Public interest matters
- Sports broadcasts or accounts
- Political campaigns
There is also a postmortem statutory exemption for use in a specific work, provided the work is either fictional or nonfictional entertainment or a dramatic, literary or musical work. Covered works include plays, books, magazines, newspapers, musical compositions, audio-visual works, radio programming, TV programming, single and original works of art, works of political and newsworthy value and ads or commercial announcements for any of these exempted works.
Common law exemptions include use of a name or likeness implicating:
- Public interest matters
- First amendment protection
- Anti-SLAPP in certain contexts
- Federal copyright preemption
California’s statute of limitations for common law and statutory claims is 2 years.
The right of publicity differs by state so it is essential to work with an attorney who understands the law in your state. Contact an experienced attorney who can help you understand your rights.
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