Rights of Publicity & Privacy
Rights of publicity are generally governed by various state statutes and the common law. California has a tradition of providing strong protection for publicity rights belonging to living celebrities as well as the heirs of deceased celebrities. Interestingly, publicity rights have recently extended beyond the realm of celebrities and into the domain of the common person because of social media based advertising. Now, arguably anyone with an online social media presence possesses rights of publicity because services like Facebook have attached a commercial value to peer based endorsements and advertising.
In California, Civil Code section 3344, the Celebrities Rights Act, protects the likeness of living persons. The Astaire Celebrity Image Protection Act, codified at section 3344.1, provides for post mortem publicity rights to the heirs of deceased celebrities if certain requirements are met. The basic requirements are: that the deceased person’s likeness possessed commercial value at the time of death; that the use sued upon was unauthorized and had commercial value; and that the deceased celebrity properly transferred the right to sue to the plaintiff. In California, the right to sue extends for seventy years after death.
Invasion of privacy and publicity rights cases are increasingly taking place online. That is because of the ease with which images may be copied and exploited for commercial gain on the Internet. At Raines Feldman LLP, we have extensive experience handling Internet law cases including rights of publicity and invasion of privacy torts. We have made these ever-changing areas of law a focus of our practice. We have the knowledge, skills and resources to protect your statutory rights of publicity and privacy.The Internet Has Made Infringement Easier | We Represent Plaintiffs and Defendants in California Right of Publicity Lawsuits
The most common cases we see involve a company’s unauthorized commercial use of a celebrity’s image to sell products. California is one of the leaders in protecting the publicity rights of individuals, and we are fully familiar with recent developments in the law. A number of cases have greatly expanded the right of publicity in California to include anything that relates to the identifiable traits of a celebrity or non-celebrity:
- Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), Frito-Lay’s use of a gravel-voiced singer in a commercial was deemed to violate Tom Waits’ rights of publicity.
- Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), Sound alike in a commercial violated the famous singer’s publicity rights.
- Fraley v. Facebook, (Northern District of California 2012), Facebook settled right of publicity claims brought by users alleging that Facebook’s use of sponsored stories converted ordinary users into unpaid spokespersons. The settlement could ultimately reach tens of millions of dollars. This case was of vast importance because it established that pre-existing notoriety is not a requirement for a claim under California Civil Code section 3344.
Many general commercial liability policies include coverage for publicity rights defense. Companies and their insurers often retain our firm to defend right of publicity claims brought pursuant to California’s Celebrity Rights Act. We provide an efficient and aggressive defense in publicity rights matters. A targeted and well-crafted discovery plan is critical in defending such cases. Our focus often involves exploiting the weaknesses in the plaintiff’s damages model through expert witness testimony and depositions. We use this expertise to leverage defense verdicts or favorable settlements before trial.