The Right Of Publicity

Many people are surprised how often right of publicity issues arise. They think that the right of publicity only applies to celebrities, and perhaps only to a photograph of a celebrity, and thus if a celebrity’s image is not used, there is no right of publicity issue. Or perhaps they believe that if the use is in honor of a celebrity, it’s okay. However, this is simply not the case. The right of publicity extends to everyone – even you! – and it doesn’t matter if it was intended as a compliment.

A classic example of a violation of the right of publicity occurs in the context of an advertising campaign. For instance, let’s say there is a fitness facility geared toward women that has a fun and exciting marketing idea – they are going to present an 80s themed workout in honor of Jane Fonda’s 80th birthday (is it possible that Jane Fonda is in her 80s?). The fitness facility revises its website’s home page to include a photo of Ms. Fonda at the peak of her workout glory – big hair, tights, slouch socks, Reeboks® – you can picture it. The fitness studio includes a photo of Jane Fonda along with “Happy Birthday, Jane Fonda!” on flyers and marketing emails. The facility did not ask permission to use Ms. Fonda’s name and likeness in its marketing campaign. However, they feel that, since they are using it as an homage to Ms. Fonda, to honor her for her birthday, surely if Ms. Fonda found out she would be delighted! Uh, not so fast.

Here’s another example. A musical instrument company wants to make a guitar that evokes Jimi Hendrix in design and sound, and plans to honor Jimi by calling it “The Hendrix.” The accompanying advertising campaign will include images of Jimi Hendrix jamming on his guitar, photographs from the Woodstock music festival, and other iconic 1960s designs and images that evoke the time period. Jimi Hendrix has long since passed away, and the guitar and related ad campaign are done to honor him as one of the greatest guitar players of all time. Accordingly, the company felt no need to ask permission of Jimi Hendrix, after all, he’s deceased – who would they ask? Whoa, not so fast.

One last example. A beverage company wants to put out a special protein drink for lactating women. The CEO’s secretary just had the most adorable baby and emailed a photo to everyone in the office. She also posted it all over social media. The company thinks that the photo is fantastic, and the baby is the cutest its ever seen. They decide to release the protein drink with the baby’s face on the front. They don’t ask the secretary first; after all, she’s an employee of the company and it’s just a baby. Further, the secretary will be pleased as punch at seeing her baby on packaging for this new product! Moreover, the secretary sent the photo to everyone in the office, and also posted it on social media, so the company believes the photograph is now in the “public domain.” Yikes, not so fast.

At issue in all three of these scenarios is the right of publicity. The right of publicity is the right of each person (and not just famous people) to control the commercial use of their name, image, and likeness, “NIL” for short. In any of the above scenarios, if the company wanted to use any aspects of either Ms. Fonda’s, Mr. Hendrix’s, or the baby’s NIL in conjunction with a product, service, or accompanying marketing effort, it would first need to get a license and release from that person or, as with Mr. Hendrix, from his estate, and, as with the baby, from the infant’s parent or guardian. Failure to do so places the companies in all three situations on the wrong side of California’s Right of Publicity statute, California Civil Code § 3344 and § 3344.1 (see below). If the person whose NIL was used in any of these scenarios was less than delighted about the use of his/her right of publicity without permission, a very powerful legal remedy is at each of their disposal, and all three are cases that the companies using their right of publicity would very likely lose.

California Civil Code § 3344 provides that a party whose publicity rights have been used without consent can either seek recovery of his/her actual damages, which would include any profits received by the violating party, or opt for statutory damages. Most significantly, the California statute also provides that the prevailing party on a right of publicity claim under § 3344 “shall also be entitled to attorney’s fees and costs.” As such, in running afoul of this statute, not only must the violator pay its own attorney to defend it, the court “shall” also grant the opponent an award of its/his/her attorney’s fees and costs incurred in bringing the case. The result? You lose and have to pay both attorneys involved!

Currently, a majority of the States in the U.S. recognize the right of publicity, and an increasing number, including California, also recognize a posthumous right of publicity (See California Civil Code § 3344.1). This is what Jimi Hendrix’s estate may be able to sue under in the scenario above.

Bottom line, if you want to use the name, likeness, or any other identifiable characteristic (voice, athlete’s uniform and number, etc.) of an individual in your marketing and advertising efforts, do it right. Contact the individual, or the estate of a deceased individual, whose right of publicity you seek to use and see if you can work out a license agreement. This may be a straightforward license agreement or, perhaps, a fuller endorsement or sponsorship agreement where the identifiable individual may take on broader marketing obligations in exchange for the compensation received. Sure, you will likely have to pay to use their publicity rights and, depending on the level of celebrity you seek, it may be a significant fee, but that license fee will be far less than what you will have to pay if you run afoul of § 3344, § 3344.1, or a similar right of publicity statute of another state.