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What types of “Damages” qualify under California Right of Publicity law?

Nov 17th, 2017 | By | Category: Right of Publicity

California Right of Publicity Law Firm – Damages Overview

Civ code 3344 damages


Many attorneys mistakenly believe that you have to have HARD DAMAGES to prove a right of publicity case (or invasion of privacy) in California.  However, the case law recognizes many different types of injury, financial and non-financial that needs to be considered in every case.  This blog presents some general case law that bears on this legal issue.  California has both a “common law” right of publicity and a “statutory” (Cal. Civil Code Section 3344) publicity rights, which allows for attorney fees and punitive damages.

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Case law

In California, the use of commercial identity for commercial purposes presumes injury (more so I would say when a privacy policy is breached) which can sometimes go hand in hand.  Here is some case law that may help in overcoming a Demurrer. 

-Injury to a plaintiff’s right of publicity is not limited to present or future economic loss, but “may induce humiliation, embarrassment, and mental distress.” Tom Waits, 978 F.2d at 1103. 

One concept of the right of privacy is the right of a person to be free from unauthorized and unwarranted publicity. Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 970, 55 A.L.R. 964, 965. The unauthorized use or publication of a person’s name may constitute an actionable invasion of the right. Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 127 P.2d 577; Birming ham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314; Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291, 295; Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364, 34 L.R.A.N.S., 1137, 135 Am.St. Rep. 417; Vanderbilt v. Mitchell, 72 N.J. Eq. 910, 67 A. 97, 14 L.R.A..,N.S., 304; Edison v. Edison Rolyform & Mfg. Co., 73 N.J.Eq. 136, 67 A. 392; Schwartz v. Edrington, 133 La. 235, 62 So. 660, 47 L.R.A., N.S., 921, Ann.Cas.1915B, 1180; Neyland v. Home Pattern Co., Inc., 2 Cir., 65 F.2d 363, certiorari denied 290 U.S. 661, 54 S.Ct. 76, 78 L.Ed. 572; Mau v. Rio Grande Oil, Inc., D.C., 28 F.Supp. 845; Routh v. Webster, 10 Beav. 561, 50 Eng.Reprint 698; annotations 138 A.L.R. 72, 168 A.L.R. 456. The exploitation of another’s personality for commercial purposes constitutes one of the most flagrant and common means of invasion of privacy. 41 Am.Jur. 941, § 22. 

The injury is mental and subjective. It impairs the mental peace and comfort of the person and may cause suffering much more acute than that caused by a bodily injury. Pound in 28 Harv.L.Rev. 343, 363. 

-The desire of a business concern for publicity or advertising does not justify its invasion of the right of privacy. Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 127 P.2d 577. The motives of a person charged with invading the right are not material with respect to the determination whether there is a right of action, and malice is not an essential element of a violation of the right. Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291, 294; Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 252, 168 A.L.R. 430, 443; Brents v. Morgan, 221 Ky. 765, 299 S.W. 967, 970, 55 A.L.R. 964; 77 C.J.S., Right of Privacy, § 2, p. 400; 4 Harv.L.Rev. 193, 218. Inadvertence or mistake is no defense where the publication does in fact refer to the plaintiff in such manner as to violate his right of privacy. Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 213, 127 P.2d 577.  See Fairfield v. Am. Photocopy Equip. Co., 138 Cal. App. 2d 82, 86-87, 291 P.2d 194, 197 (1955).

-Invasion of privacy for advertising purposes may afford the basis for an inference of improper motive.   See Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291.  See also Fairfield v. Am. Photocopy Equip. Co., 138 Cal. App. 2d 82, 88, 291 P.2d 194, 198 (1955). 

The advertisement necessarily carried the implication that plaintiff endorsed the machine and had permitted defendant to use his name as a lawyer in its advertisements. He had done neither. Plaintiff is entitled to compensation for injury to his peace of mind and to his feelings. The recoverable compensation for these items is difficult to determine since they afford no definite criteria for the ascertainment of damages. In a case of this character there can be no direct evidence of the amount of damages sustained, nor the amount of money which will compensate for the injury. The measure of damages therefore is for the trier of fact, and in assessing such damages he is accorded a wide and elastic discretion. Taylor v. Pole, 16 Cal.2d 668, 673, 107 P.2d 614.

 These cases may not all be accurate or on point so check your references and citations before relying.  This is general legal information only and not legal advice or a substitute for legal advice.

Is California Right of Publicity Law Preempted by Federal Copyright Law?

Possibly.  This means, if your case is based on copyright infringement, you should consider bringing the infringement claim and NOT the right of publicity claim.  However, you should first review the relevant case law as outcomes may vary.

This legal point was discussed in the following cases:

Wendt v. Host International , 125 F.3d 806 (9th Cir. 1997) (George Wendt one of the stars of “Cheers”)

Fleet v. CBS, Inc., 50 Cal. App.4th 1911 (1996)

“In this case we are asked to decide a very narrow issue: whether an actor may bring an action for misappropriation of his or her name, image, likeness, or identity under section 3344 of the Civil Code when the only alleged exploitation occurred through the distribution of the actor’s performance in a motion picture. The trial court concluded that to the extent California law would permit such claim, it was preempted by federal copyright law. We agree with the trial court and affirm”

Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001)

“We agree with the approach taken by the Fifth Circuit and the reasoning employed in KNB Enterprises. The subject matter of Appellants’ statutory and common law right of publicity claims is their names and likenesses. See Newcombe, 157 F.3d at 691. A person’s name or likeness is not a work of authorship within the meaning of 17 U.S.C. § 102. This is true notwithstanding the fact that Appellants’ names and likenesses are embodied in a copyrightable photograph.”

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)

“The district court found that Sony had obtained a license to use a sample of Laws’s recording of “Very Special” and held that Laws’s claims for violation of her common law right to privacy and her statutory right of publicity were preempted by the Copyright Act, 17 U.S.C. § 101-1332. We agree with the district court that the Copyright Act preempts Laws’s claims, and we affirm.”

Does Arizona have a right of publicity law?

We addressed this issue in a separate blog on AZ right of publicity.

Contact a Cal. Right of Publicity Law Firm

We an be reached at (877) 276-5084 to discuss your case.  We have a successful track record in succeeding on these types of claims.  In some instances these cases can be handled on a contingency fee basis.


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