The Right of Publicity --
Names, Likeness, Photos and Beyond

How to Recognize the Right and Clearance

© 1997 Green & Green All Rights Reserved

What if you want to use the photo of the Rolling Stones, the signature of Billy Bonds or a look-alike Woody Allen to promote a product you are selling? What if you want to sell or promote a web site using photos from a playboy magazine? The Right of Publicity has been in California law for many decades, since 1971. Lately, because of a national and international increase in litigation Congress is considering whether to make this a uniform national law. It is what prevents one from doing this and more, with some notable exceptions. The California Law is coded in Civil Code Section 3344: "Unauthorized commercial use of name, voice, signature, photograph or likeness (a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, 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, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages...."

Definitions include: "photograph" means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.

A person is "deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use...." This may include more than one person such as a musical group, that is "readily identifiable," examples being "a crowd at any sporting event, a crowd in any street or public building, the audience at any theatrical or stage production, a glee club, or a baseball team."

There are some "fair use" type of exceptions:
"use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign" does not constitute a use for which consent is required.
use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required "solely because the material containing such use is commercially sponsored or contains paid advertising."
Rather it shall be a question of fact (meaning for a court to decide) whether or not the use of the person's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required.
The law does not apply to the "owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this law is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the person's name, voice, signature, photograph, or likeness as prohibited."

The bottom Line: this is one of the rights you need to clear; to get a license for, and to have competent legal help if you are to be protected. It is one of the laws you want to use to STOP someone from using your famous "mug" or autograph on sports equipment.