Right of publicity claims are on the rise, with plaintiffs such as the heirs of “Aunt Jemima,” Arnold Schwarzenegger, and former Panamanian dictator Manuel Noriega all filing such claims in the past year. Many of these claims are downright ridiculous, such as Noriega’s recent failed attempt to extort a payment from video game publisher Activision Blizzard Inc. for Activision’s use of his name and likeness in Call of Duty: Black Ops II. Right of publicity claims can be dangerous, however – especially in California – and particularly when the alleged use of a celebrity’s name and/or likeness is in connection with advertising for a commercial product, rather than in the context of an expressive work (as in Noriega’s case).
Click here to view image.
This blog series will provide a brief overview of right of publicity claims in California, including the elements of both a common law and statutory right of publicity claim (Part I), defenses to and limitations on claims (Part II), a plaintiff’s remedies (Part III), and a comparison of state law right of publicity claims with their federal complement under the Lanham Act (Part IV).
Part I: Elements Of Claims
California recognizes both a common law and statutory right of publicity.
The common law claim involves the following elements:
- Defendant’s use of the plaintiff’s identity;
- To defendant’s advantage (commercially or otherwise);
- Lack of consent; and
- Resulting injury
The statutory claim (called a “commercial misappropriation of likeness” claim), set forth in Civil Code section 3344, sets forth two additional elements:
- Knowing use; and
- A direct connection between the use and the commercial purpose (i.e. the use was directly connected with advertising or commercial sales).
Note: Under the common law claim (as opposed to the statutory claim), liability is strict – i.e., the unauthorized use itself creates liability regardless of the user’s intent.
Examples of Successful Right of Publicity Claims
- Vanna White v. Samsung, 971 F.2d 1395 (9th Cir. 1992) (Samsung liable to Vanna White for running an ad featuring a robot dressed in a wig and gown that posed next to a Wheel of Fortune game board)
- Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) (singer and actress Bette Midler stated claim for common law tort of misappropriation based on automobile company’s deliberate use of a “sound-alike” in a television commercial)
- Comedy III Prods., Inc. v. Saderup, Inc., 25 Cal. 4th 387 (2001) (artist liable to holder of rights to The Three Stooges comedy act for producing and selling lithographs and t-shirts bearing The Three Stooges’ likenesses)
- In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 724 F.3d 1268 (9th Cir. 2013) (right of publicity claims by former collegiate athletes arising out of video game developer’s use of their likenesses in popular video games not barred by California’s anti-SLAPP statute; developer, Collegiate Licensing Company and athletes subsequently reached $40 million class-action settlement)