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Invasion of Privacy - Appropriation of Likeness

1 Elements and Case Citations

There are both statutory and common law claims of Invasion of Privacy based on “Appropriation of Likeness” in California.  Laws v. Sony Music Entm’t, Inc., 448 F.3d 1134, 1138-39 (9th Cir. 2006) (“‘[t]he remedies provided for under California Civil Code § 3344 complement the common law cause of action; they do not replace or codify the common law.’”).

Common Law:

The common law claim requires proof of:
(1) the defendant's use of the 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.

Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983), superseded by statute on other grounds.

California courts have broken the common law action into two types of wrongful appropriation:

The first type of appropriation is the right of publicity, . . . ., which is “in essence that the reaction of the public to name and likeness, which may be fortuitous or which may be managed or planned, endows the name and likeness of the person involved with commercially exploitable opportunities.”  The other is the appropriation of the name and likeness that brings injury to the feelings, that concerns one's own peace of mind, and that is mental and subjective.

Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 541-42 (1993); accord Aroa Marketing, Inc. v. Hartford Ins. Co. of Midwest, 198 Cal. App. 4th 781, 789  (2011).

Codification:

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, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.

Cal. Civ. Code § 3344(a) (2013).

CALIFORNIA STATE COURTS

Supreme Court of California:  Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 391-92 (2001) (discussing both common law and statutory claims).

California 1st District: Orthopedic Systems, Inc. v. Schlein, 202 Cal. App. 4th 529, 544 (2011) (discussing both common law and statutory claims).

California 2d District: Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983), superseded by statute on other grounds (discussing common law claim).

California 3d District: None

California 4thDistrict: None

California 5th District:  None

California 6th District: Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790, 793 (1995).

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit: Doe v. Gangland Prods., No. 11-56325, 2013 U.S. App. LEXIS 19102, at *31-32 (9th Cir. Sep. 16, 2013) (considering claim brought pursuant to Cal. Civ. Code § 3344);  Laws v. Sony Music Entm’t, Inc., 448 F.3d 1134, 1138-39 (9th Cir. 2006) (discussing both common law and statutory claims).

Central District: Mindlab Media, LLC v. LWRC Int'l, LLC, No. CV 11-3405-CAS (FFMx), 2013 U.S. Dist. LEXIS 55948, at *11-12 (C.D. Cal. Apr. 15, 2013) (discussing both common law and statutory claims).

Eastern District:  Yeager v. Cingular Wireless LLC, 673 F. Supp. 2d 1089, 1095 (E.D. Cal. 2009) (discussing both common law and statutory claims).

Northern District: Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090, 1093-94 (N.D. Cal. 2011) (discussing both common law and statutory claims).

Southern District:  None

2 Issues and Defenses to Claim for Invasion of Privacy – Public Disclosure of Private Facts

(1)  Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses.  See Chapter 1 for all defenses.

(2)  Statute of Limitations:  Cal. Code Civ. Proc. 340(3) (one year); Maheu v. CBS, Inc., 201 Cal. App. 3d 662, 676 (1988).

(3)  Section 3344 contains “an exception to liability for any ‘use of a . . . likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign.’”  Doe v. Gangland Prods., No. 11-56325, 2013 U.S. App. LEXIS 19102, at *32 (9th Cir. Sep. 16, 2013) (citing Cal. Civ. Code § 3344(d)).  This exception has been held applicable to documentaries that do not fall in the “tradition of news.”  Id. at *32-33.

(4)  The common law claim has an exception for “matters of public interest.”  Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 680 (2010).

(5)  The use is an “expressive useentitled to First Amendment protection.  No Doubt v. Activision Publishing, Inc., 192 Cal. App. 4th 1018, 1027 (2011).  However, “[u]nder the ‘transformative use’ test developed by the California Supreme Court, [a] use does not qualify for First Amendment protection as a matter of law [where] it literally recreates [the individual’s likeness] in the very setting in which he has achieved renown.”  Keller v. Elec. Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1271 (9th Cir. 2013).

(6)  The common law right does apply to deceased personsEstate of Fuller v. Maxfield & Oberton Holdings, LLC, 906 F. Supp. 2d 997, 1008 (N.D. Cal. 2012).

(7)  The “single publication rule” codified at Cal. Civ. Code § 3425.3 applies to claims for invasion of privacy.  Christoff v. Nestle USA, Inc., 47 Cal. 4th 468, 476 (2009).