This page covers legal information specific to the State of California. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.
Generally speaking, the Right of Publicity in California protects against unauthorized uses of a person’s name or likeness for commercial and certain other exploitative purposes. California has two systems of Right of Publicity law: a statute, and a common law right.
THE STATUTORY RIGHT
What the Statutory Right of Publicity Protects
Generally speaking, the Right of Publicity protects a person's right in his or her name and likeness. California's statute, Cal. Civ. Code § 3344, protects a person's:
- photograph, and
The term “voice” applies only to a person’s actual voice, not to imitations. See Midler v. Ford, 849 F.2d 460, 463 (9th Cir. 1988). However, as noted below, the common law right of publicity might apply to voice imitators.
The term “photograph” includes still or moving pictures, but the person in question must be “readily identifiable” (meaning someone could “reasonably determine” that the photo depicts the plaintiff). However, pictures of crowds, such as on public streets or at sporting events, do not run afoul of the statute as long as no people are “singled out as individuals” in the photo. § 3344(b)(3).
The term “likeness” is the most difficult of the five protected categories to precisely define. Courts have used the “readily identifiable” test to conclude that drawings, if sufficiently detailed, can constitute a “likeness.” Newcombe v. Adolf Coors Co., 157 F.3d 686, 692-93 (9th Cir. 1998). In another case, the court ruled that a robot, if sufficiently detailed, could be a “likeness.” Wendt v. Host Intern., Inc., 125 F.3d 806, 810 (9th Cir. 1997). Less detailed robots, though, may fall short of the “likeness” mark. White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992).
What Constitutes a Statutory Violation
California's statute protects against uses of a person's likeness for advertising purposes. Specifically, the statute 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:
[I]t shall be a question of fact whether or not the use of the person’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required[.] (Cal. Civ. Code § 3344(e))
Courts have thus interpreted the statute to impose a three-step test:
- Was there a “knowing” use of the plaintiff’s protected identity?
- Was the use for advertising purposes?
- Was there a direct connection between the use and the commercial purpose?
See, e.g., Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998). If the answer to all three questions is “yes,” then there has been a violation of the statute.
The statute also contains an explicit exception for uses “in connection with any news, public affairs, or sports broadcast or account, or any political campaign.” § 3344(d).
Rights of the Deceased
California has a separate statute protecting posthumous rights of publicity, found at Cal. Civ Code § 3344.1. The right lasts for 70 years after death, and is considered a freely transferable, licensable, descendible property right. The substance of the right is largely the same, with the following exceptions:
- The holder of a deceased person's right of publicity must register the claim with California's Secretary of State, and the rights-holder cannot recover damages for any use that occurs before registration. § 3344.1(f)(1).
- To qualify under the statute, the deceased person's right of publicity must have had "commercial value at the time of his or her death, or because of his or her death." § 3344.1(h).
- There is an exemption for any uses in a "play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value," or an advertisment for any of these works. § 3344.1(a)(2).
THE COMMON LAW RIGHT
The Traditional Four-Step Test
Courts generally describe California’s common-law right as a four-step test, in which a plaintiff must allege:
- The defendant’s use of plaintiff’s “identity”;
- The appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise;
- Lack of consent; and
- Resulting injury.
See White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992).
What the Common Law Right Protects
Though the second prong of the standard four-step test mentions “name or likeness,” courts held that the common law right is actually much broader: the focus instead is on the term “identity.” See Abdul-Jabbar v. General Motors, 85 F.3d 407, 413-14 (9th Cir. 1996).
Courts have interpreted “identity” broadly, covering more uses than does the statutory right of publicity. For example, imitating someone’s voice is not a violation of the statute, but it may violate the common law right. See Waits v. Frito-Lay, 978 F.2d 1093, 1098-1100 (9th Cir. 1992). A picture of a distinctly-decorated race car can be a common-law violation, even if the driver himself is not visible. Motschenbacher v. R.J. Reynolds Tobacco, 498 F.2d 821, 827 (9th Cir. 1974). A robot can constitute a common-law violation, even if not sufficiently detailed to violate the statute. White v. Samsung, 971 F.2d 1395, 1397-99 (9th Cir. 1992).
What Constitutes a Violation of the Common Law Right
Unlike the statute, the common law right is not explicitly limited to commercial uses of a plaintiff’s identity. However, the “less commercial” a use, the more that First Amendment concerns come into play. (See section on First Amendment Limitations below.) Purely commercial speech, such as advertising, does nothing more “than propose a commercial transaction”; if a defendant’s use falls outside the realm of the purely commercial, California’s common law right of publicity is less likely to apply.
A plaintiff can simultaneously pursue claims for violations of both the common law and the statute. Cal. Civ. Code § 3344(g). The statute entitles a victorious plaintiff to the “actual damages suffered,” as well any of the defendant’s profits that “are attributable to the use.” Punitive damages “may” be awarded under the statute; California law limits punitive damages to cases of “oppression, fraud, or malice.” Cal. Civ. Code § 3294. The winning side in a statutory case “shall” receive his/her attorney’s fees and costs.
Damages are not limited strictly to the financial harm suffered by a plaintiff. Courts may also take into account “injury to peace, happiness, and feelings,” as well as “injury to goodwill, professional standing, and future publicity value.” See Waits v. Frito-Lay, 978 F.2d 1093, 1102-03 (9th Cir. 1992).
LIMITATIONS ON BOTH THE STATUTORY AND COMMON LAW RIGHTS
Relationship with Copyright Law
A right of publicity claim (either statutory or under the common law) fails if it is too similar to a copyright claim; in such a case, the state right-of-publicity law is preempted by federal copyright law. For example, in Laws v. Sony Music, 294 F.Supp.2d 1160 (C.D. Cal. 2003), Sony licensed one of the plaintiff’s songs and sampled it in a new recording. The plaintiff tried to bring a right of publicity claim, but the court ruled that Sony’s use of a licensed recording fell under copyright law, thus preempting the state claim. Generally speaking, if the allegedly-infringing use of a person’s identity primarily involves use of copyrighted work, there is a chance that the state-law claim will be preempted.
First Amendment Limitations
The First Amendment also limits the extent to which rights of publicity can limit speech about matters of public interest. As one case put it, “[u]nder the First Amendment, a cause of action for appropriation of another’s name and likeness may not be maintained against expressive works, whether factual or fictional.” Daly v. Viacom, 238 F. Supp. 2d. 1118, 1123 (N.D. Cal. 2002).
As mentioned above, the California statute contains exceptions for uses related to news, public affairs, sports, and politics. Courts often focus on this statutory safe harbor, instead of the First Amendment directly, when confronting statutory right-of-publicity claims. See, e.g., Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 415-17 (Cal. Ct. App. 2001).
The First Amendment is more often directly relevant in common law right of publicity cases, since there is no statutory safe harbor. But since cases often involve both common law and statutory claims, the First Amendment analyses often cover both the statute and the common law. For example, in Daly v. Viacom, the court ruled that use of the plaintiff’s likeness in advertisements for a television show, using footage from the show in which the plaintiff appeared, was protected as part of an expressive work. That case involved both common law and statutory claims.
The 9th Circuit has suggested that cases involving "noncommercial" uses (meaning, the use contains some expression and does not "simply advance a commercial message") receive heightened First Amendment scrutiny. If the plaintiff is a public figure, he/she "can recover damages for noncommercial speech from a media organization . . . only by proving 'actual malice' " in so far as the noncommercial use was "intended to create [a] false impression in the minds of [the] readers." Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186-87 (9th Cir. 2001). The full extent of the "actual malice" standard's applicability in right of publicity cases remains unclear, however.
Statute of Limitations
Both the statutory and common law right of publicity claims are subject to a two-year statute of limitations. Christoff v. Nestle USA, Inc., 213 P.3d 132, 135 (Cal. 2009). The Ninth Circuit has held that, for material appearing on a website, the statute is not retriggered every time aspects of the website are amended or revised; rather, the statute is only retriggered if "the statement itself is substantively altered or added to, or the website is directed to a new audience." Yeager v. Bowlin, 693 F.3d 1076, 1082 (9th Cir. 2012).