In a recent decision, the Ninth Circuit held that under California law, rights of publicity are assignable by the person who owns those rights, and further held that the right to bring a cause of action for the misappropriation of such rights is also assignable to the extent monetary damages are sought. The complaint, filed by Timed Out, LLC a company that specializes in “the protection of personal image rights, charged the Defendant, Youabian, Inc. a company that provides cosmetic medical services, with violating the rights of two models by using the likeness of the models in its advertising without their permission. Following discovery of the unauthorized use, the models assigned their rights to bring a claim with respect the use of their likeness to Timed Out. Youabian argued that Timed Out did not have standing to sue for right of publicity violations of third parties because those rights are personal and are therefore non-assignable, and the lower court agreed, dismissing Timed Out’s complaint on this basis. However, Timed Out appealed that decision and the Ninth Circuit disagreed with Youabian and the lower court, reversing the lower court’s decision and holding that rights of publicity are in fact assignable. The court explained that the “personal” nature of these rights merely restricts who can assign the right not whether the rights are assignable. Youabian also asserted that Timed Out did not have standing to sue inasmuch as the only right assigned to them was the right to bring a cause of action and no more. Here, the Ninth Circuit held that to the extent the damages sought were only monetary and not for personal injury or emotional distress, it was possible for the individuals to assign the right to bring such an action.
TIP: When using images in advertising, even licensed stock images, advertisers should ensure that they have rights to use the likeness of any individual featured in the image.