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.

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.

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.

Cal. Civ. Code § 3344.1

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.

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

Cal. Civ. Code § 3344

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

• 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 

Cal. Civ. Code § 3344.1

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.

Comedy III Prods. v. Saderup, 21 P.3d 797 (Cal. 2001)

Winter v. DC Comics, 69 P.3d 473 (Cal. 2003)

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)

• 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)

Page last updated on: December 14, 2017

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