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Staying informed: California's right of publicity law

When someone uses your likeness for profit, shouldn't you have some control over how your image or voice gets used? In states like California, specific laws exist to ensure that you stay in charge of your unique identity and control how you're portrayed. As with many laws, however, you may need to take action to uphold your rights.

What is the right of publicity law?

The State of California's Right of Publicity Law holds that each person is entitled to determine how their likenesses, photographs, signatures, actual voices and names get used. Although someone can depict you in certain artistic works or performances where they imitate you, they can't knowingly use these elements for profit. For instance, if a company finds a photograph of you that you haven't sold the rights to, they can't simply slap it on a billboard without obtaining your consent.

Critical legal distinctions

It's important to understand that this law doesn't prohibit all forms of use. It's solely restricted to advertising and similar commercial purposes, and if someone didn't know that they were using your protected identity, they can't be held liable. Other allowable uses include things like news broadcasts.

You should be aware that California protects your right of publicity in common as well as statutory law. There's also a statute that preserves such rights as property rights that rest with your estate for a period of 70 years after you die.

Taking action

Once you're satisfied that someone is violating your right of publicity, you can bring a lawsuit against them. You can sue for the damages that you or your reputation suffered as a result of the use and seek the profits that the offender derived from using your image illegally. If you win, you may also be eligible to have your attorney's fees covered.

How can you prove that you were wronged? Courts use various benchmarks to determine whether you have a valid case, and their approaches may differ based on whether you're suing over your common law or statutory rights. Fortunately, you can file claims on both grounds at the same time.

When you want to protect your right of publicity, it may be wise to talk to a legal professional. Courts might throw your claim out if they deem it should be tried as a copyright case, and these laws don't trump the constitutionally guaranteed First Amendment right to free speech. There's also a two-year statute of limitations within which you must file. Discussing your situation with an attorney may make it easier to construct a solid case.

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