USE OF LIKENESS
Generally speaking, the Right of Publicity in California protects against unauthorized uses of a person’s name or likeness for commercial and certain other exploitative purposes. California has two systems of Right of Publicity law: a statute, and a common law right.
THE STATUTORY RIGHT FOR ADVERTISING PURPOSESGenerally speaking, the Right of Publicity protects a person's right in his or her name and likeness. California's statute, Cal. Civ. Code § 3344, protects a person's:
4) photograph, and
California's statute (Cal. Civ. Code § 3344) protects against uses of a person's likeness for advertising purposes. Specifically, the statute 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. The mere fact that a person’s likeness is used in connection with a commercial product or service does not violate the statute.
THE COMMON LAW RIGHTThe Traditional Four-Step Test
Courts generally describe California’s common-law right as a four-step test, in which a plaintiff must allege:
1) The defendant’s use of plaintiff’s “identity”;
2) The appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise;
3) Lack of consent; and
4) Resulting injury. See White v. Samsung, 971 F.2d 1395, 1397 (9th Cir. 1992).
Unlike the statute, the common law right is not explicitly limited to commercial uses of a plaintiff’s identity. However, the “less commercial” a use, the more that First Amendment concerns come into play. Purely commercial speech, such as advertising, does nothing more “than propose a commercial transaction”; if a defendant’s use falls outside the realm of the purely commercial, California’s common law right of publicity is less likely to apply.