Part I of this series covered the elements of common law and statutory right of publicity claims, and provided some examples where plaintiffs have successfully asserted such claims arising out of the exploitation of their likenesses without their consent.

A person’s right to control the use of his or her name or likeness, however, has its limits. In the context of expressive works, a person’s right to control the use or portrayal of his likeness diminishes as the person’s celebrity or public figure status increases. Courts frequently recognize that the right of publicity threatens two core First Amendment values, namely (1) the importance of an uninhibited marketplace of ideas and (2) the need to further the right of self-expression. E.g., Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 860 (1979); Elizabeth Taylor v. The Nat’l Broad. Co. Inc., 1994 WL 762226 (Cal. Super. Ct. Sept. 29, 1994); Rosemont Enterprises v. Random House, Inc., 58 Misc. 2d 1 (N.Y. 1968). Accordingly, the First Amendment often protects both factual and fictionalized works that are based on and/or utilize the names, likenesses and biography of real people. Other defenses to right of publicity claims include consent, parody, incidental use and transformative use.

Liability also may turn on whether the proposed subject is deceased. In California, the statutory postmortem right of publicity is 70 years. Other states, such as New York, currently do not recognize a postmortem right of publicity. Generally, the law of the deceased subject’s domicile at the time of his or death will determine whether his or her heirs or estate may assert a postmortem right of publicity claim.

Part II: Commonly Asserted Defenses To And Limitations On Right of Publicity Claims

  • Newsworthiness. Dora v. Frontline Video, Inc., 18 Cal. Rptr. 2d 790 (1993) (documentary on surfing featuring iconic surfer protected because it was “a fair comment on real life events which have caught the popular imagination”). Compare Downing v. Abercrombie & Fitch, 265 F.3d 994, 1002 (9th Cir. 2001) (First Amendment did not protect retailer’s illustrative use of well-known surfer’s photograph in shopping catalog where photograph was merely “window-dressing to advance the catalog’s surf theme” and “[did] not contribute significantly to a matter of public interest.”).
  • Transformative Use. Comedy III Productions v. Saderup, 25 Cal. 4th 387, 399 (2001) (Courts will not prohibit the use of a person’s identity in an expressive work where the work is “so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness;” sets forth multi-inquiry test to determine “transformative use” ). See also Sarver v. The Hurt Locker, LLC, No. 2:10-cv-09034, 2011 WL 11574477, at *6-7 (C.D. Cal. Oct. 13, 2011) (dismissing plaintiff Jeffrey Sarver’s right of publicity and other claims on the ground that the motion picture The Hurt Locker was transformative).
  • Parody. Winter v. DC Comics, 30 Cal. 4th 881, 889-90 (2003) (no violation of the plaintiffs’ rights of publicity where, among other things, comic book drawings purportedly portraying plaintiffs were “distorted for purposes of lampoon, parody, or caricature”).
  • Incidental use or fleeting reference. Cal. Civ. Code §§ 3344(b)(2), (3); Aligo v. Time-Life Books, 1994 WL 715605, *3, 4 (N.D. Cal. 1994) (holding that four-second use of plaintiff’s photograph in 29-minute infomercial was “too fleeting and inconsequential” to give rise to right of publicity claim); Arenas v. Shed Media USA, Inc., 2011 U.S. Dist. LEXIS 101915 (C.D. Cal. Aug. 22, 2011) (incidental uses or mere references do not give rise to right of publicity claims).
  • Consent. Jones v. Corbis Corp., 815 F. Supp. 2d 1108, 1114 (C.D. Cal. 2011) aff’d, 489 Fed. Appx. 155 (9th Cir. 2012) (plaintiff singer and actress consented to publication of photographs on internet website where she voluntarily posed for photographers at red carpet event with knowledge that the photographs would be displayed to potential buyers).
  • Copyright Preemption. Laws v. Sony Music Entm’t, Inc., 448 F.3d 1134 (9th Cir. 2006) (singer’s claims for statutory and common law misappropriation arising out of music producer’s use of samples from singer’s sound recording preempted by Copyright Act where the entirety of the allegedly misappropriated vocal performance was contained within copyrighted medium which producer licensed from copyright holder).
  • Two-year statute of limitations. Christoff v. Nestle USA, Inc., 47 Cal. 4th 468, n.7 (2009).

You Can Take It With You: Some Rights Descendible

  • Unlike defamation and privacy torts, California’s statutory claim for right of publicity is descendible: California’s postmortem right of publicity is 70 years. Cal. Civ. Code § 3344.1. Importantly, the postmortem right of publicity under Section 3344.1 is limited to individuals who were domiciled in California at the time of their death. Bruce Lee Enterprises, LLC v. A.V.E.L.A., Inc., No. 10-CV-2333-KMW, 2013 WL 822173 (S.D.N.Y., Mar. 6, 2013); Diana Princess of Wales Memorial Fund v. Franklin Mint Co., 1999 WL 1278044, *1 (9th Cir. 1999).
  • California common law does not recognize a common law postmortem right of publicity. Bruce Lee Enterprises, LLC, 2011 WL 1327137, at *7.
  • By comparison, New York does not recognize a postmortem right of publicity. N.Y. Civ. Rights Law § 50 (“A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”)(emphasis added); Frosch v. Grosset & Dunlap, Inc., 75 A.D.2d 768 (N.Y. App. Div. 1980).

*In Spring 2013, bills were introduced in the New York Senate and Assembly proposing to amend New York Civil Rights Law to create a 70-year postmortem right of publicity.

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