The right of publicity protects a plaintiff’s identity being used by others for non-protected commercialpurposes. The plaintiff’s identity means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to the plaintiff’s name, signature, photograph, image, likeness, or voice. The right of publicity is violated when the unauthorized commercial use of a plaintiff’s identity occurs. A commercial use occurs when the defendant offers the plaintiff’s identity to promote the sale of products, services, or fundraising.
The plaintiff must show certain elements to make a publicity rights claim. Sometimes these elements are statutory, sometimes they are based on common law. A plaintiff must generally show that the defendant:
原告提起侵害知名度之訴訟必須提出特定要件。有時這些要件是法定的；有時基於習慣法規定；原告一般須證明被告：
• Used the plaintiff’s identity.利用原告之身分。
• The defendant appropriated the plaintiff’s name and likeness to the defendant’s commercial advantage.被告為了自益而挪用原告之姓名和樣貌。
• The plaintiff gave no consent.原告未同意。
• The plaintiff had an injury.原告受有損害。
There are five common defenses to the tort of right of publicity. The first defense is using a person’s identity to portray that person in a work of art as long as there is not a commercial profit. Second, is using the plaintiff’s likeness for non-commercial purposes.For example, using the plaintiff’s likeness for news, public affairs, sports, and politics.
有五個知名度侵權之通常抗辯。第一個抗辯，將某人之身分用於寫真之非營利使用。第二，非商業目的利用原告之樣貌，例如：將原告之樣貌用於新聞、公共事務、運動和政治。
Third, is the exception for professional photographers that allows them to display their work at their place of business.
第三，專業攝影師例外允許他人於其營業所展示其作品。
A defense fourth is that the plaintiff consented to the publication. A fifth defense is the statute of limitations has expired.
第四個抗辯，原告允許出版。
第五個抗辯，時效。
This term describes the maximum amount of time the plaintiff can wait before bringing a lawsuit. In the right of publicity cases, the statute of limitations ordinarily runs from the date of first publication of the offending facts. It is common to be anywhere from one to three years.時效是原告就侵害其知名度最常之期間，知名度侵權時效自知有侵害行為起算1至3年。
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A victorious plaintiff can collect their actual damages and the defendant’s profits that result from the violation. Punitive damages may be available for willful violations. A court also may issue injunctive relief.
欲尋求勝訴之原告須證明實際的損害及被告從該侵害行為獲取之利益。故意侵害還可請求懲罰性違約金。法院可以發禁制令以茲保全。
