Misappropriation of publicity involves the unauthorized use of someone’s name, likeness, and/or identifiable personality traits without authorization. A lawsuit can be filed against someone or a business for doing this. Misappropriation of publicity is similar to lawsuits that can be filed for misappropriation of name and likeness. The difference is that, in most states, misappropriation of publicity applies only to sufficiently famous persons. The underlying idea is that a truly famous person can “monetize” their name and likeness. Likewise, the authority to use their name and likeness can be sold for commercial gain. Thus, allowing some person or business to use a famous person’s name and likeness with authorization (and payment) is a form of theft.
In other states — such as Texas — misappropriation of publicity is only for those who are deceased and lasts for fifty years after the person’s death. Tex. Property Code Ann. § 26. The right of publicity is designated by statute as a property right that can be sold, assigned, or bequeathed in the manner of other property before death. Either the Estate, the assignees, or the heirs of the decedent are the proper parties to sue if the right of publicity is misappropriated in jurisdictions like Texas. If you think you have a case for misappropriation of publicity, contact us here at Revision Legal. Our number is (231) 714-0100. We are proven litigators specializing in internet law and protecting intellectual property rights.
What Must be Proven?
Like other types of misappropriation, three legal elements must be shown to win a lawsuit. These legal elements are:
- Use of a person’s name, likeness, or other identifiable characteristics
- Said use was without authorization or legal exception — such as for fair use or to identify a person in a news article, for example
- Said use was for the other party’s advantage or attempt to gain an advantage — such as use in marketing for commercial advantage
Note that it is not generally required that the third-party unauthorized user obtains the benefit sought (like sales and profits) and it is not necessary for the person suing to show any damage or loss of some advantage (like sales or profits).
An identifiable personal characteristic can be about anything. In one case, Bette Midler was able to win a misappropriation of publicity case when an advertiser used a singer who sounded like Midler in a TV commercial. Midler’s voice is unique and identifiable.
What Happens if a Person/Business is Found Guilty of Misappropriation of Publicity?
If a person or business is found guilty of misappropriation of publicity, monetary damages can be awarded and a court order can be issued prohibiting any further misappropriation and/or abuse of an individual’s name, voice, signature, or likeness. Money damages can be based on statutory damages. In Texas, the statutory damages are actual damages or $2,500. Money damages can also include the disgorgement of any profits made by the unauthorized user, punitive damages, and reasonable attorney’s fees and court costs.
Contact Revision Legal For more information, call Revision Legal at 231-714-0100. We are internet and social media influence attorneys with proven experience with IP protection, misappropriation cases, and complex litigation. We are lawyers specializing in internet law.
State-by-State Variation in Right of Publicity Law
The right of publicity is a creature of state law, and the variation among states is significant. Approximately 36 states have recognized the right of publicity either by statute or common law. California’s right of publicity statute, California Civil Code § 3344, protects any living person’s name, voice, signature, photograph, or likeness. California also has a post-mortem right of publicity that extends 70 years after death under Civil Code § 3344.1. New York protects against unauthorized commercial use of a living person’s name, portrait, picture, or voice under Civil Rights Law §§ 50–51, but New York’s statutory protection does not extend post-mortem except for limited categories.
Indiana has one of the broadest postmortem right of publicity statutes, extending 100 years after death and protecting any aspect of a person’s personality that is sufficiently distinctive. Ind. Code § 32-36-1-1 et seq. Tennessee similarly protects deceased personalities’ rights under the Personal Rights Protection Act. The variation in state laws creates complex multi-state issues for businesses operating nationally — a use of a celebrity’s likeness that is lawful in one state may be actionable in another, and identifying the correct governing law requires careful legal analysis.
First Amendment Limits on Right of Publicity Claims
The right of publicity does not override First Amendment protections for creative expression, satire, or news reporting. Courts have struggled to articulate a clear test for when expressive works that reference a celebrity’s likeness are protected expression versus actionable misappropriation. The dominant approaches include the “transformative use” test developed by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001), which asks whether a work adds sufficient creative expression beyond the celebrity’s likeness to warrant First Amendment protection, and the “predominant purpose” test used in Missouri and some other jurisdictions.
The transformative use test has been applied to protect video game makers, artists, and documentary filmmakers who incorporate celebrity likenesses into their works when the likeness is transformed by creative expression. However, the same test has been used to deny protection when a work simply reproduces a celebrity’s likeness with minimal creative transformation — as was the case in No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018 (2011), where a court found that a video game’s realistic depiction of band members performing songs was not sufficiently transformative. The line between protected expression and actionable misappropriation is frequently disputed and fact-dependent, making experienced right of publicity counsel essential.
AI-Generated Content and Emerging Right of Publicity Issues
Generative artificial intelligence has created a new frontier of right of publicity litigation. AI tools can now generate photorealistic images, video deepfakes, and synthetic voice recordings that are indistinguishable from authentic content. Using these tools to generate unauthorized commercial content featuring a real person’s likeness raises clear right of publicity claims. Several states have enacted or are considering legislation specifically addressing AI-generated deepfakes, and the FTC has signaled interest in enforcement against deceptive AI-generated endorsements.
The legal analysis for AI-generated likeness misappropriation is the same as for traditional misappropriation: Was the person’s name, likeness, or identifying characteristic used? Was it used without authorization? Was it used for commercial advantage? The fact that a computer generated the content rather than a human artist or photographer does not affect the liability analysis. Companies developing AI marketing tools, brands using AI-generated celebrity lookalikes in advertising, and platforms hosting AI-generated deepfake content all face potential right of publicity exposure.
Damages and Remedies in Right of Publicity Cases
The remedies available for misappropriation of the right of publicity include injunctive relief, actual damages, disgorgement of the defendant’s profits attributable to the unauthorized use, and in some states, statutory damages. California Civil Code § 3344 provides for recovery of actual damages not less than $750 plus any profits attributable to the unauthorized use. Punitive damages are available upon a showing of fraud, oppression, or malice. For commercially significant unauthorized uses — such as a major advertising campaign featuring an unauthorized celebrity likeness — damages can be substantial, as the relevant measure includes the fair market value of an authorized license for the use.
Contact Revision Legal for Right of Publicity Legal Services
Whether you are a public figure whose likeness has been used without authorization, an estate enforcing postmortem rights, or a business seeking to avoid right of publicity liability, Revision Legal’s intellectual property and internet law attorneys can help. We handle right of publicity claims and defenses in California, New York, Texas, and nationwide. Call us at 231-714-0100 or visit our contact page to discuss your situation with an experienced attorney.
