Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
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.
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?
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)