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First amendment and “public affairs” defenses under California Right of Publicity law

Jun 14th, 2017 | By | Category: Right of Publicity

First Amendment & Social Media Law Firm – Right of Publicity Defenses



Before filing a lawsuit for misappropriation of identity (name, image and likeness) which can be a form of misappropriation as well as a form of invasion of privacy, it is important to understand the “first amendment aspects.”  This blog will discuss free speech and the potential defense that can be raised under California law for “news” and “public affairs.”  If a Plaintiff files a lawsuit for ROP and the action or conduct is protected by the first amendment, it is possible that a “anti-SLAPP motion” could be filed which, if successful, could result in the Defendant being awarded their attorney fees, and the case being dismissed.

What is the right of publicity under CA law?

A Plaintiff suing for misappropriation of name, image and likeness in California has TWO DIFFERENT CAUSES OF ACTION to look at.

  1. California “common law” right of publicity
  2. Statutory right of publicity (Cal. Civil Code Section 3344)

Common defenses to right of publicity misappropriation

Here are some defenses to right of publicity that may be raised in a case:

  1. Anti-SLAPP motion
  2. Free speech (commercial vs. non-commercial)
  3. “Public affairs”
  4. Sports broadcast
  5. Consent to use name, image, likeness
  6. License
  7. Copyright preemption

What is the free speech (first amendment defense)?

We have talked about the first amendment in other videos.  In general, the first amendment applies to all persons, and even to businesses and companies under more limited circumstances.

What is the “public affairs” defense?

Even if something is not “newsworthy” the right of publicity may not be successful if the Defendant can show that use of the name, image, photo, or likeness dealt with something that would be construed as a “public affair” which is generally considered to be something less than “news.”

Does businesses have a first amendment right of free speech?

Potentially yes.  For example, companies that are engaged in legitimate protest, or parody may be protected.  In addition, where legitimate news and “public affairs” stories are at issue, this can also provide a defense.  The defenses, (upon my review of the case law) will apply more often to companies that are “media” type of companies for example:

  • News stations
  • Magazines
  • Publications
  • Movie makers
  • Independent film makers
  • Companies with parody products

Contact a California Right of Publicity Law Firm

Out intellectual property practice group can represent both Plaintiffs and Defendants in state and federal court litigation, as well as in arbitration and mediation.  Contact us for a free initial consultation at (877) 276-5084.  We handle cases up and down the golden state including offices in San Diego, Orange County, Los Angeles, and San Francisco.







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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen, ME2 Productions and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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