California
California, home to Hollywood, has a statutory right of publicity for both the living and the dead, as well as common law actions for both the right of publicity and the appropriation branch of the right to privacy.
Statute
YES
California provides a civil claim for the unauthorized use of another’s “name, voice, signature, photograph, or likeness” on products or merchandise, or for the purposes of advertising or promotion. California also makes it a crime and provides a civil action if someone uses another’s unauthorized signature in a political campaign.
The statute provides statutory damages in the amount of $750, or alternatively actual damages, and attributable profits. The person must be “readily identifiable” in any photograph.
Common Law - Right of Publicity
YES
California has a common law right of publicity that predates the passage of the statutory right and it remains valid and additive to the statutory right.
To establish a common law claim a plaintiff must prove: (1) the defendant used the plaintiff’s identity; (2) the appropriation was for defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. The common law has been interpreted more broadly both to apply to noncommercial uses and to uses beyond, name, voice, signature, photograph or likeness.
Comedy III Prods. v. Saderup, 21 P.3d 797 (Cal. 2001)
Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983)
White v. Samsung, 971 F.2d 1395 (9th Cir. 1992).
Common Law - Right of Privacy-Appropriation Tort
YES
California has a right to privacy and recognizes the appropriation branch of the tort. It distinguishes the torts on the basis of whether the claimed injury is an economic or dignitary one.
Dora v. Frontline Video, Inc., 15 Cal. App.4th 536 (1993)
Melvin v. Reid, 112 Cal. App. 285 (1931)
Post-Mortem Right
YES
Under Cal. Civ. Code § 3344.1, post-mortem rights are available for seventy (70) years after death. The statue provides a cause of action for the unauthorized use of a “deceased personality’s” “name, voice, signature, photograph, or likeness” on products or merchandise, or for the purposes of advertising or promotion of such items.
The statutory rights are freely transferable and descendible property rights. The right applies to those who died on January 1, 1915 and thereafter. The post-mortem provision was adopted in 1984, and codified as Cal Civ. Code § 990, but it was renumbered and revised in 1999, and the post-mortem period was extended from fifty (50) years to seventy (70). In 2008, it was amended to allow (or clarify) that those who died before the statute’s enactment could retroactively have transferred the right via testamentary instruments or contract. The Ninth Circuit has held that the statute only applies to those who died domiciled in California. (One district court recently suggested that perhaps if the state of domicile recognizes a right there could be a claim under 3344.1, see Bravado Int’l Grp. Merchandising Servs., v. Gearlaunch, Inc., 2018 WL 6017035 (C.D. Cal. 2018)). There are no common law post-mortem rights, at least when the deceased had not exploited his identity during life. See Lugosi v. Universal Pictures, 603 P.2d 425 (1979); Guglielmi v. Spelling-Goldberg Prods., 603 P.2d 454 (1979).
Comedy III Prods. v. Saderup, 21 P.3d 797 (Cal. 2001)
Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012)
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
LIKELY NOT
There is no need to be a celebrity, but there is a dispute under California law about whether an living identity-holder must have a commercially valuable identity. Some courts have held that the fact that a person’s identity has been used demonstrates commercial value, while others have held that there must be an independent value. This is not a requirement under the privacy-based tort. The post-mortem statute requires that the person have a “commercial value” at the time of death or because of the death, but does not require that the personality have exploited his identity during his lifetime.
For a more detailed discussion of this dispute, see Jennifer E. Rothman, Commercial Speech, Commercial Use and the Intellectual Property Quagmire, 101 Virginia Law Review 1929 (2015).
Fraley v. Facebook, Inc., 830 F. Supp.2d 785 (N.D. Cal. 2011)
Cohen v. Facebook, Inc., 2011 WL 5117164 (N.D. Cal., Oct. 27, 2011)
Does the law protect persona?
YES and NO.
The statutory right of publicity is limited to name, voice, signature, photograph, or likeness, but the common law in California has been read more broadly by federal courts to include any uses that evoke a person’s identity.
Wendt v. Host International , 125 F.3d 806 (9th Cir. 1997)
White v. Samsung, 971 F.2d 1395 (9th Cir. 1992)
Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974)
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO.
Courts applying California law have allowed right of publicity claims in the context of noncommercial speech, including political campaigns, video games, comic books, and t-shirts.
Comedy III Prods. v. Saderup, 21 P.3d 797 (Cal. 2001)
No Doubt v. Activision Publishing, Inc., 192 Cal. App.4th 1018 (2011)
Browne v. McCain, 611 F. Supp.2d 1062 (C.D. Cal. 2009)
Statutory Defenses
Exemptions from the statute that protects the rights of the living (§ 3344) include:
• Incidental uses of employees
• Uses in news, public affairs, sports broadcasts, or political campaigns
• Distributors and publishers shall not be liable unless they had knowledge of the unauthorized use
Gionfriddo v. Major League Baseball, 94 Cal. App.4th 400 (2001)
Dora v. Frontline Video, Inc., 15 Cal. App.4th 536 (1993)
Exemptions from the statute that protects the rights of the dead (§ 3344.1) include:
• Uses in plays, books, magazines, newspapers, musical compositions, audiovisual works, radio or television programs, single and original works of art and related advertising
Related merchandise is not automatically exempted.
• Uses in works with political or newsworthy value and related advertising
• Uses in news, public affairs, sports broadcasts, or political campaigns
• Distributors and publishers shall not be liable unless they had knowledge of the unauthorized use
Astaire v. Best Film & Video Corp., 116 F.3d 1297 (9th Cir. 1997)
First Amendment Analysis
California uses a transformative work test to determine whether a use of a person’s identity is protected by the First Amendment. This test has led to conclusions by the California Supreme Court that t-shirts with artwork depicting the Three Stooges were not transformative, and therefore not protected by the First Amendment, but that the use of variations of real musicians name’s and likenesses in a comic book was protected. California also protects uses in the public interest, at least when reporting information.
A variety of perplexing state court and federal court decisions have emerged trying to apply the transformativeness test leading to some unpredictable and surprising results. The use of a rock band’s members’ likenesses was found nontransformative when appearing unaltered in the context of a video game, while another video game that used the likeness of the lead singer of a band, but changed her name and made her a space-age news reporter was transformative. These decisions of the California courts along with the recent decisions by the Ninth Circuit in Keller and Davis v. Electronic Arts, have put at risk many nonfiction works, as well as fictional, but realistic portrayals of historical figures. See Amicus Brief of Intellectual Property and Constitutional Law Scholars, Davis v. Electronic Arts, filed January, 2015. A recent decision by a trial court in De Havilland v. Fox presents the most stark danger presented by the current uncertainty. The court concluded that a realistic portrayal in a biographical miniseries was not transformative. This decision will likely be reversed on appeal, but until then it is certainly worrisome.
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Comedy III Prods. v. Saderup, 21 P.3d 797 (Cal. 2001)
Winter v. DC Comics, 69 P.3d 473 (Cal. 2003)
No Doubt v. Activision Publishing, Inc., 192 Cal. App.4th 1018 (2011)
Stewart v. Rolling Stone, LLC, 181 Cal. App. 4th 664 (2010)
Kirby v. Sega of America, Inc., 144 Cal. App.4th 47 (2006)
Gionfriddo v. Major League Baseball, 94 Cal. App.4th 400 (2001)
Montana v. San Jose Mercury News, Inc., 34 Cal. App.4th 790 (1995)
Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536 (1993)
The Ninth Circuit has adopted California’s transformativeness test, but sometimes also a broader balancing approach.
In re NCAA Student-Athlete Name & Likeness Litigation, 724 F.3d 1268 (9th Cir. 2013) (aka Keller v. Electronic Arts)
Hilton v. Hallmark Cards, 599 F.3d 894 (9th Cir. 2009)
Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001).
Other Commentary
California courts have classified the right of publicity as intellectual property, in contrast to the privacy-based misappropriation tort
Alterra Excess and Surplus Insurance Co. v. Snyder, 234 Cal. App. 4th 1390 (2015)
Aroa Marketing, Inc. v. Hartford Inc. Co. of Midwest, 198 Cal. App.4th 781 (2011)
• California courts have held that the right of publicity is assignable.
Timed Out, LLC v. Youabian, Inc., 229 Cal. App.4th 1001 (2014)
For a discussion of why the assignability of the right of publicity is problematic, see Jennifer E. Rothman, The Inalienable Right of Publicity, 10 Georgetown L.J. 185 (2012).
• California courts have held that the right of publicity is sometimes preempted by copyright law when applied against the exclusive copyright holder, but is not otherwise preempted. The Ninth Circuit has also had different views on when copyright law preempts the right of publicity
KNB Enters. v. Matthews, 78 Cal. App.4th 362 (2000)
Fleet v. CBS, Inc., 50 Cal. App.4th 1911 (1996)
Jules Jordan Video, Inc. v 144942 Canada, Inc., 617 F.3d 1146 (9th Cir. 2010)
Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006)
Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001)
Wendt v. Host International , 125 F.3d 806 (9th Cir. 1997)