Calfiornia right of publicity law explained

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Right of publicity law in California and be complex. There is both a common law right of publicity, and a statutory right under Civil Code section 3344. Some call these claims "misappropriation" claims because they take away ones right to control how their name, image and likeness is used, and can invade their personal privacy.

Each cause of action has its own elements that must be proven by the Plaintiff (called the burden of proof. This depends on whether you are pursuing a common law right of publicity claim (generally no attorney fees can be recovered) or the California "statutory" claim where the PREVAILING PARTY (make sure you win) can recover their attorney fees expended. There are also exceptions for newsworthy publications so be careful.

Attorney Steve the internet & IP lawyer discusses these elements, including where to find the jury instructions. Some of the elements discussed are:

1. Knowing use

2. Of another's name, image or likeness

3. For commercial or advertising purposes

4. Defendant failed to have consent (ex. no model release)

5. Causation

5. Harm (financial, emotional damages may be recoverable, humiliation, hurt feelings are discussed in the California case law).

6. Availability of damages, (attorney fees to prevailing party under Civ Code 3344)

7. Punitive damages (for extremely oppressive behavior). See our video on punitive damages in California here: https://youtu.be/CADst1RTrUs

8. Cumulative remedies (meaning you can still sue for other legal violations)

These are the main things discussed, along with providing some of the "affirmative defenses" to a ROP violation that may be raised in a case where applicable including but not limited to:

1. First amendment (ex. newsworthy posts and publications, for example of a public figure or public official)

2. Sports broadcast

3. Political news (again, people are subject to newsworthy events)

4. Public affairs (things that are of interest to the public)

5. Consent (you agreed to the post via a contract for example)

6. Parody / fair use (ex,. transforming the original likeness)

7. Statute of limitations (generally two years but check your local rules.

8. Copyright pre-emption

This video moves along pretty fast to try to make it as short as possible. If you are a Plaintiff or Defendant involved in a California right of publicity, privacy, or misappropriation claim, contact us at (877) 276-5084 to speak with one of our lawyers. --------------------------------------------------------------------------------------------------------------------------------
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