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.’”).
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 App. 3d 409, 417 (1983), superseded by statute on other grounds.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).
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 App. 3d 409, 417 (1983), superseded by statute on other grounds (discussing common law claim).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