An Overview of California’s Right of Publicity Law

Introduction

In California, the right of publicity prevents a business from knowingly using a person’s name, voice, signature, photograph, or likeness (hereinafter collectively a person's "persona") in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services (hereinafter "commercial purposes"), without the person's prior consent¹. Businesses operating in California need to comply with this right of publicity law when it comes to using any aspect of someone’s persona in their marketing and advertising campaigns.

What Does California Right of Publicity Law Entail?

Under California law, anyone who uses an aspect of someone’s persona for commercial purposes must first obtain consent from that individual before doing so. Using someone's name or face on billboards, advertisements, product labels, websites, videos and social media posts could all constitute violation of this law if done without permission.

If a person does not give their permission, then the use of their identity can be considered unlawful under California law. Furthermore, if a business has obtained prior consent from an individual for a certain use, but later decides on a different use than originally agreed upon (such as using it in different mediums), the business should first seek out new permission before going ahead with those plans.

A business that violates California's right of publicity law will be liable in a lawsuit to the individual whose persona was used without permission: This liability will be in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by the individual as a result of the unauthorized use, plus any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured individual is only required to present proof of the gross revenue to the business that was attributable to such use, and the business who violated the law is required to prove its deductible expenses. Punitive damages may also be awarded to the injured individual. The prevailing party in any action under the law will also be entitled to attorney's fees and costs. So, prudent businesses seek out written consent before using any aspect of someone's persona for commercial purposes.

Exceptions To The Rule

Although it is usually necessary for businesses to obtain consent before using an aspect of someone's persona for commercial purposes, there are some exceptions. For instance, editorial use and news reporting do not require explicit permission from an individual as long as the report is accurate and non-defamatory in nature.

Summary:

California's right of publicity law is designed to protect individuals from having their identities used for commercial purposes without their prior consent. Businesses should ensure they have obtained the necessary permission from individuals, and can prove it, before utilizing any images containing those individuals' persona for any commercial purposes; otherwise the business could be exposed to legal liability. Although there are exceptions such as editorial reporting and news stories where prior consent may not be required by law , businesses should still exercise caution when it comes to these matters. Being cautious about obtaining proper permissions will help keep a business safe from potential legal repercussions.

1:Cal. Civ. Code § 3344.