California has both a common law and a statutory right of publicity which protects a person’s right in his or her name and likeness. Specifically, Cal. Civ. Code § 3344, protects a person’s:加州同時有習慣法與制定法的知名度法律,去保護人的姓名和樣貌;加州更是於其民法典3344條有明文立法去保護人的:
The statutory cause of action prohibits “knowing” use of a person’s name, likeness, etc. “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.” Cal.Civ. Code § 3344(a). The mere fact that a person’s likeness is used in connection with a commercial product or service does not violate the statute. Rather, the statute focuses specifically on advertising uses of a person’s likeness.
California’s common law right of publicity involves a four-step test in which a plaintiff must allege:
A plaintiff can simultaneously pursue claims for both the statute and the common law. Cal. Civ. Code §3344(g). Under the statute, a plaintiff can recover for “actual damages suffered” as well as any of the defendant’s profits that are “attributable to the use.” A plaintiff may also recover punitive damages under the statute.
In order to hold someone liable for unauthorized use of a name or likeness, a plaintiff must establish three elements:
3. If you want to use someone’s name or likeness, how can you avoid a potential lawsuit?
In order to avoid a potential lawsuit, the best idea is to get permission from everyone you use in advertising, not just celebrities. Prior to using anyone’s image, have the person in question sign a licensing agreement (if they want to be compensated for the use of their image) or a basic contract with a release (if they are not looking for compensation) giving you permission to use their name or likeness to promote yourself. Make sure that any agreement spells out your rights in clear and succinct language and that both parties have the opportunity to consult with attorneys if they so desire. It is highly advisable that you retain experienced and knowledgeable legal counsel to avoid potential liability.