I. LEGISLATION（這是加州規範知名度的成文法，知名度也可以將之稱為名氣權；不過，這個權利人人都有，只是實務上常常是名人起訴主張，本質上right of publicity源自隱私權，然後由美國實務界於判決中逐漸形塑並承認此種權利。在美國right of publicity被認為是智慧財產權，但相較於專利權、著作權等，係人之智慧結晶創設出來的物品或方法或著作等，right of publicity與此二者較不相近，其反而與商標權較接近。例如某人經過了多年的努力，不管在戲劇上或歌唱上或體壇上、寫作上等等，逐漸累積知名度，當別人未經其同意將其外貌、姓名、聲音等，為商業上之利用，進而獲利，被利用者當然會介意，他認為別人係坐享其成利用他的名氣來賺錢，而沒付半毛錢，但如何保護“知名度”這個權利或是利益，臺灣法律並沒有明文承認“名氣”這個權利，頂多是以侵權行為，例如：肖像、姓名（人格權），來主張損害賠償，或是以不當得利來主張，而主張侵權行為，要負舉證責任，而侵權行為有七要件，要這七要件環環相扣，才能勝訴。不管承認與否，在臺灣與美國，對造成多少損害還是要負舉證責任；承認的好處在於，right of publicity一旦被承認，會被認為是財產權，而且性質上是智慧財產權，既然是財產權，就可以被繼承、被讓與；而且智慧財產權通常有存續期間，一旦期間屆至，即成為公共財，人人都可以利用。此點可以引起反思，臺灣要否承認right of publicity。
A. Right of Publicity
California's right of publicity statute, Civil Code Section 3344, was first enacted in 1971 and provides as follows.加州知名度法於1971年制定於其民法典3344項，其規範如下：
California Civil Code Section 3344:加州民法第3344項
'3344. Use of Another's Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting Without Prior Consent.未得他人同意於廣告或商業招攬利用其姓名、聲音、簽名、照片或與樣貌酷似等等
(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.
(b) As used in this section, "photograph" means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.
A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.
If the photograph includes more than one person so identifiable, then the person or persons complaining of the use shall be represented as individuals, rather than solely as members of a definable group represented in the photograph. A definable group includes, but is not limited to, the following examples: a crowd at any sporting event, a crowd in any street or public building, the audience at any theatrical or stage production, a glee club, or a baseball team.
A person or persons shall be considered to be represented as members of a definable group if they are represented in the photograph solely as a result of being present at the time the photograph was taken and have not been singled out as individuals in any manner.
(c) Where a photograph or likeness of an employee of the person using the photograph or likeness appearing in the advertisement or other publication prepared by or in behalf of the user is only incidental, and not essential, to the purpose of the publication in which it appears, there shall arise a rebuttable presumption affecting the burden of producing evidence that the failure to obtain the consent of the employee was not a knowing use of the employee's photograph or likeness.
(d) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).
(e) The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to create a use for which consent is required under subdivision (a).
(f) Nothing in this section shall apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the person's name, voice, signature, photograph, or likeness as prohibited by this section.
(g) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.
