Rights Of Publicity


Rights of publicity allow you to control how your name, image, voice, likeness, and other personal aspects are used in the promotion of goods and services. These rights are typically created by state law through statutes and caselaw. However, these rights can be related to trademark claims under the federal Lanham Act.

Claims for invasion of privacy can protect your privacy and prevent third parties from intruding into your private affairs, publicly disclosing private facts about you, or casting you in a false light. These laws also vary from state to state. They may be related to defamation claims and to the right of publicity.

We understand the importance of your image and privacy and the many ways that new technologies and internet tools can encroach on those rights if not used properly. Our experience handling cases for plaintiffs and defendants gives us a wider perspective that allows us to help you with your Right of Publicity and Invasion of Privacy cases.

Call Lesowitz Gebelin LLP at 310-341-3072 or send us an email to schedule an initial consultation about your case concerning the right of publicity. We have honed the skills you need on your side to analyze and effectively litigate your case.

California’s Statutory Right of Publicity

In California, the Right of Publicity statute, California Civil Code section 3344, protects a person’s “name, voice, signature, photograph [including both still pictures and video], or likeness” from being used without their permission to sell or promote goods or services.

Courts have interpreted the California statute. They pose the following questions to determine liability:

First, was there a “knowing” use of the protected aspect of the plaintiff’s identity?

Second, was that use for the commercial purpose of advertising or selling?

Third, was there a direct connection between the use and the commercial purpose?

Fourth, was the use done without the plaintiff’s consent?

Finally, if the use was done for a political campaign, a news, public affairs, or sports broadcast or account, was there a false statement that was made knowingly?

If all of these questions are answered yes, there has been a violation of the California statutory right of publicity.

The California statute allows the wronged party to recover the profits obtained from the unauthorized use, establishes a minimum of $750 in damages for any successful claim, allows for awards of attorneys’ fees to a prevailing plaintiff or defendant.

California’s Common Law Right of Publicity

Beyond the statutory rights, California’s common law also protects a person’s right to profit from the commercial value of his or her identity. The common law cause of action may be stated by pleading the defendant’s unauthorized use of the plaintiff’s identity; the appropriation of the plaintiff’s name, voice, likeness, signature, or photograph to the defendant’s advantage, commercially or otherwise; and resulting injury.  Ross v. Roberts, 222 Cal. App. 4th 677, 684–85 (2013).

To establish a violation of the common law right of publicity, the plaintiff must show:

  • The defendant used plaintiff’s name, likeness, or identity without permission;
  • The defendant gained a commercial benefit or other advantage by using the plaintiff’s name, likeness, or identity; and
  • The defendant’s use of the plaintiff’s name, likeness, or identity was a substantial factor in causing harm to the plaintiff.

A successful plaintiff can then recover the commercial value of their name or likeness, as well as additional items such damages for loss of reputation or emotional distress where appropriate.

Defending Against Right of Publicity Suits

As they are based on speech, claims brought under the Right of Publicity are subject to defenses under the First Amendment. One such defense in California is based on the “Transformative Test” which protects the marketplace of ideas and individual rights of self-expression from censorship and suppression from the Right of Publicity. Comedy III Productions, Inc. v. Gary Saderup, Inc. 25 Cal.4th 387, 391 (2001). This test asks whether the new speech adds something with a different purpose or character from the protected likeness to create a new message; if so, it is a “transformative” use that does not unfairly use the protected likeness. For example, works of parody and other distortions of a celebrity’s character are not substitutes for the celebrity’s endorsement and are therefore protected under the First Amendment.

The attorneys at Lesowitz Gebelin LLP understand the application of the First Amendment and other defenses to Right of Publicity claims. We are ready to guide you in your decisions in your Right of Publicity case and can help you make the right steps right away in order to protect your rights.

Contact Us About Your Right of Publicity Suit

Lesowitz Gebelin LLP is located in Beverly Hills in Los Angeles County, California. We represent clients throughout California, including Santa Monica, Hollywood, the San Fernando Valley, Orange County, San Diego, Ventura, Riverside, San Bernardino, and san Francisco.

Our experienced attorneys can help you If you believe your likeness has been misappropriated over the internet or through offline media. We invite you to contact us about your Right of Publicity matter and either submit to us using our online case submission form or by calling us directly at 310-341-3072.


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