Best Defenses to Right of Publicity Claims
有時某人係基於惡意起訴他人侵害其知名度；當然，其訴不見得有理由，通常是藉此威脅對造，以取得和解金。是故，對此類訴訟須了解如何答辯以保全自己。
If a company uses a person’s photo, voice, or likeness and includes it in their own advertisement without first obtaining consent, they may be violating the person’s right of publicity. In California, there are laws against misappropriating someone’s publicity rights. Unfortunately, not all right of publicity lawsuits are brought in good faith, which is why anyone who has been threatened with this type of litigation should be aware of the best defenses to right of publicity claims. Sometimes, an individual threatens to file a right of publicity complaint simply as a way of pressuring the defendant to pay a quick cash settlement. If this happens to you, it is very important that you speak with a knowledgeable attorney who can honestly assess the situation and help you contest the claim.
假如一個公司於其廣告利用某人的照片、聲音或樣貌酷似等，而未在第一時間獲得該人之同意，其侵害該人之知名度。在加州，有法律規定藉以對抗不當利用某人之知名度。不幸的是，並非所有的知名度訴訟係以善意提起，這也是為什麼一但遭到此種訴訟威脅時，必須知道如何提出最佳答辯以資因應。有時候，一方威脅去對他方提起此種訴訟，單純是對他方施以壓力藉此獲取和解金。倘若你遇到了，以下而言是對你非常重要，以此與你的律師聊談，使其能精確地評估情狀，同時協助你贏得訴訟。
What are the best defenses that can be raised in response to a right of publicity claim in California? Keep reading this blog to find out.
什麼是最佳答辯以回應加州知名度訴訟？持續關注本部落格便能得知。
Some states limit the right of publicity to celebrities, but California has a much more expansive law around this intellectual property right. Any person who knowingly uses someone else’s identity in any manner for products, services, or advertising must have prior consent to do so. The right of publicity usually applies to recognizable aspects of an individual’s identity, such as their image or likeness, their name, their voice, and even a persona that has been created. The statute, California Civil Code section 3344, also stipulates that the person who is injured as a result of the unauthorized use of their image may bring a civil suit for damages.
一些州對名人知名度之保護有限制，但加州有諸多保護此智慧財產權之法律。任何人明知以任何方式於產品、服務或廣告利用他人之身分必須事前取得該人之同意。知名度通常適用於可辨識某人諸如其樣貌、酷似樣貌、姓名、聲音，甚至其所創設與其身分可聯想到的因子等都算是要保護的標的。加州民法第3344條亦規定，某人因未經授權利用其樣貌導致損害可提起民事侵權之損害賠償之訴。
In order to prevail at trial in a statutory right of publicity lawsuit, the plaintiff must establish all of the following:
為了要在制定法所規範的知名度訴訟中取得勝訴，原告必須證明下列各項：
The good news is that the law does give defendants several potential defenses against a right of publicity claim, including the following:
好消息是，法律賦予若干潛在答辯以對抗知名度訴訟，包括以下：
“Freedom of Speech” Defense言論自由之抗辯
One of the strongest defenses available in some right of publicity cases is a First Amendment freedom of speech defense. For example, you may have used the plaintiff’s likeness in a way that added something new and changed the message that would otherwise be conveyed by the likeness. This is known as the “transformative test” because it allows for transformative use of celebrity images, such as parodies that could not possibly be confused with a more straightforward celebrity product endorsement. The idea here is that by incorporating other elements into the image, it becomes a new kind of creative work or artistic expression that qualifies as protected speech under the First Amendment.
在若干侵害知名度訴訟中最強而有力的答辯莫過於憲法第一修正案之言論自由。舉例：你可以對原告的樣貌外觀略做增修及藉由樣貌更改其他方面由樣貌傳達之訊息。這即是為人所知的“轉換檢測”為轉換利用名人樣貌其是被允許的，例如嘲諷不會對名人產品代言造成混淆，
There are often First Amendment concerns implicated by a right of publicity lawsuit. This is why you need to be represented a knowledgeable intellectual property attorney who understands the nuances of the law.
知名度訴訟常牽涉到第一修正案，這也是為何你必須委請智慧財產權方面之專業律師來訴訟。
“Newsworthiness” or Public Interest Defense新聞價值或公益抗辯
A related defense available in some right of publicity cases is newsworthiness, which is another way of saying that a particular use of the plaintiff’s likeness or persona is valuable to the public because it is of legitimate public concern. Here, the court is likely to balance the right of the plaintiff to maintain some control over the use of their likeness against the public’s right to be informed about important matters. This is known as the public interest defense. Additionally, courts often find that just about any event involving a celebrity is worthy of news coverage. So, the key question in these right of publicity cases will be whether the defendant was truly engaged in journalism, or whether they were using the plaintiff’s image to market or sell something.
在一些知名度訴訟一個相關有效之答辯即是新聞價值，其是一種方式的說法，被告利用原告影像或人參是對大眾有價值的，因為是對公眾牽涉層面具合法性。於此，法院可能就原告對影像為查一些利用權限去對抗大眾對有些重要事件被告知的權利，兩者作出權衡。
No Misappropriation
In some right of publicity cases, it is not immediately obvious that the plaintiff’s likeness is being used at all. For instance, a book might disguise the identity of the plaintiff by using a different name. This does not necessarily mean that the claim will be dismissed, however, since the plaintiff may still be able to show that the book’s content makes it clear that the character is, in fact, the plaintiff.
無不當利用
於一些侵害知名度之訴訟，就援告之圖像是否被利用，非立即明顯。舉例來說，在一本書籍利用不同之姓名藉以偽裝成源告之身分，這不必然駁回此訴；因此原告必須證明，書的內容實際係由原告所著。
Group Photo團體照
In California, defendants in a right of publicity case may be able to raise a defense that they did not violate state law by using the plaintiff’s image when it was part of a group photo. But there is an exception to the group photo defense if the plaintiff’s image was singled out from the rest of the crowd in the photograph.
在加州，被告可能在侵害知名度訴訟中提出其利用原告圖像而該圖像原告僅係於團體照中之一部分，因而以未違反州法作為答辯。但有例外，假使於該照片原告的圖像已從團體中被獨立出來，則不得以之為抗辯。
Plaintiff’s Consent
Another defense that might be available in a right of publicity case is that the defendant had the plaintiff’s consent to use their name, image, or likeness for commercial purposes. Many times, this consent comes in the form of a licensing agreement between the parties. Even in cases where the defendant did misappropriate the plaintiff’s identity, it might be possible for the parties to avoid costly litigation by entering into a licensing deal after the fact.
於侵害知名度之另外一個抗辯即是被告得原告同意得以商業目的利用其圖像或樣貌酷似。該同意往往在當事人間以授權契約模式存在。即便在被告挪用原告身分之情況下，亦有可能事後以訂立授權契約來避免耗費過鉅之訴訟。
Accidental Misappropriation非故意挪用
In a statutory right of publicity claim, the defendant can potentially avoid liability by showing that their misappropriation of the plaintiff’s identity was accidental. That’s because the Celebrities Rights Act, codified in California Civil Code section 3344, requires the plaintiff to prove that the defendant “knowingly used” the defendant’s identity without consent. (Note: This defense is only available to defendants in statutory right of publicity claims. For a common law right of publicity claim, the plaintiff does not need to show that the use of their identity was knowing or intentional.)
制定法之知名度訴訟，被告可經由證明其非故意利用與原告身分有關因子以避免侵權。這是因為加州名人權法即加州民法第3344條要求原告須證明被告未經其同意明知利用與原告身分有關之因子（值得注意的是，此抗辯只存在於制定法之知名度訴訟，如果是習慣法為依據主張侵害知名度，原告無須證明明知或故意利用其身分，亦即過失亦成立）。
