Right of Publicity / Name, Image, Likeness (“NIL”) / IP Lawyers
The right of publicity is a form on intellectual property that prohibits others from using your name, image, & likeness (NIL) on merchandise or to advertise or sell a product without obtaining your consent. Your NIL includes photographs, your voice, signature, videogame character, cartoons, paintings, and any other renditions of you.
There is no Federal statutory Right of Publicity, but there is some form of a “common law” (i.e., developed through the court system) Right of Publicity recognized. In California, there is a common law right of publicity, and there is also California’s Civil Code (“Civil Code”) Section 3344.
COMPENSATION FOR UNATHORIZED USE OF NIL / VIOLATIONS OF THE RIGHT OF PUBLICITY
California Civil Code Section 3344 provides that anyone found liable for violating the law shall pay:
- the greater of seven hundred fifty dollars ($750) or the actual damages suffered by the plaintiff;
- any profits from the unauthorized use;
- punitive damages; and,
- attorneys’ fees and costs.
The remedies listed above are not exclusive. As explicitly stated in Civil Code Section 3344, they are “in addition to any others provided for by law,” including general contract damages, and those available under California Unfair Competition law (Business and Professions Code §§ 17200 et seq.).
Finally, damages are not limited to economic harm. Damages may also be awarded for “injury to peace, happiness, and feelings,” as well as “injury to goodwill, professional standing, and future publicity value.” Waits v. Frito-Lay, 978 F.2d 1093, 1102-03 (9th Cir. 1992).
NEWS / PUBLIC AFFAIRS EXCEPTION – NOT CLEAR CUT
The right of publicity is always limited by the freedoms granted in the First Amendment. If used in connection with a news, public affairs, or sports broadcast or account, or with a political campaign, the use is not a violation of the right of publicity. However, whether or not something qualifies as “news” can be a grey area. For example, a California federal district court upheld a jury verdict finding that AT&T had violated the right of publicity of Chuck Yeager by using his name in a press release without his permission. The Court rejected AT&T’s argument that Civil Code Section 3344 only applied to “traditional, paid advertising,” and held that it applied to any use for “purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent …”.
RIGHT OF PUBLICITY FOR THE DECEASED
California provides for a right of publicity for 70 years after death. This right may be transferred and/or licensed to others, and is passed on upon a successor’s death. In order to take advantage of the California statute, the holder of the right of publicity must register with the State. There is also a common law right of publicity after death in federal courts.
Under the California statute, the posthumous right of publicity does not apply to “a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works.”
IMPLIED LICENSE MAY BE FOUND BY YOUR CONDUCT
Without a written agreement, a Court may still find that you have given a license to use your name, image, likeness (NIL), voice or photograph based solely on your conduct. For this reason, it is critical to have an attorney draft an agreement any time you are creating intellectual property for another (e.g. singing, modeling, voice-overs, acting), and to have an experienced attorney familiar with the overlap of right of publicity, copyright, and trademark, which all may be at play in your deal.