The law of privacy/publicity rights often leaves people confused because of all the terms left open to interpretation. In a recent California Appeals court, it was clarified that the right of publicity is assignable during one’s lifetime under California law.
In a previous 1979 California Supreme Court case, Lugosi v. Universal Pictures, the court held that “the right of publicity [is] personal in nature and therefore non-assignable.”
This past September, a California Supreme Court case, Timed Out, LLC v. Youabian, Inc. held that the right of publicity is assignable during one’s lifetime under California law. In this case, the Defendants’ allegedly displayed 2 models’ images in connection with advertising their cosmetic medical services. The plaintiff was a company that “specialize[s] in the protection of personal image rights.” The Models discovered Defendants had been using their images on a website without the Models’ consent to advertise their medical services. Following discovery, the Model’s assigned their rights to bring suit for misappropriation of their images to Plaintiff.
Defendants moved for judgment on the pleadings and argued that the Plaintiff lacked standing to sue on behalf of the Models because the right of publicity is “personal in nature, and cannot be assigned.” In trial court, the motion was granted due to the holding in Lugosi v. Universal Pictures.
In analyzing whether this motion was appropriately granted, the California Supreme Court acknowledged that in California, the right of publicity is both a statutory and a common law right and that although the right of publicity had its roots in the right of privacy, it is now modernly recognized as distinct. In 1971, California enacted Civil Code §3344, a commercial statute that complements the common law tort of misappropriation of likeness. According to this statute, “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, 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… shall be liable for any damages sustained by the person or persons injured as a result thereof.” Nothing in this section expressly prohibited assignment of the rights and remedies established by the statute.
In the analysis, the court distinguished the instant case from Lugosi, whose issue on appeal was specifically pertaining to “whether the right of publicity survives a celebrity’s death, as a descendible property interest, if never exercised or exploited by the celebrity during his or her lifetime.” Through careful analysis of the words of the ruling, the court in the instant case determined that the personal nature of the right restricts who can assign it – not whether the right of publicity can be assigned. Thus, the trial court erred in holding that the right of publicity could not be assigned.
Privacy and publicity rights have always been a hot topic in law trying to strike a balance between the two. Perhaps cases will follow to give more guidance as to how to resolve these sensitive topics.
- Cal Civ Code § 3344
- Eleanor B. Atkins, Right of Publicity is assignable during one’s lifetime. (Nov. 1, 2014, 5:40 PM), http://www.lexology.com/library/detail.aspx?g=57a61338-138f-4472-8a1a-68cdf2f8b74d.
- Lugosi v. Universal Pictures,25 Cal. 3d 813,603 P.2d 425,160 Cal. Rptr. 323,1979 Cal. LEXIS 346,10 A.L.R.4th 1150,5 Media L. Rep. 2185,205 U.S.P.Q. (BNA) 1090(Cal.1979)
- Timed Out, LLC v. Youabian, Inc.,229 Cal. App. 4th 1001,177 Cal. Rptr. 3d 773,2014 Cal. App. LEXIS 830,112 U.S.P.Q.2D (BNA) 1073(Cal. App. 2d Dist.2014)