California Right of Publicity Cases

In California the right of publicity is both a common law right and a statutory right. (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal. 4th 387, 391 106 Cal. Rptr. 2d 126, 21 P.3d 797.) The common law right of publicity has been recognized in this state since 1931. ( Melvin v. Reid (1931) 112 Cal. App.. 285 297 P. 91; see also Miller, Commercial Appropriation of an Individual's Name, Photograph or Likeness: a New Remedy for Californians (1972) 3 Pacific L.J. 651, 657.) In 1971, the Legislature enacted section 3344, which authorized recovery of damages by any living person whose name, photograph, or likeness was used for commercial purposes without his or her consent. The common law right of publicity derives from the fourth category of invasion of privacy identified by Dean Prosser, described as "appropriation" of a plaintiff's name or likeness for the defendant's advantage. (Comedy III, supra, 25 Cal. 4th at p. 391 & fn. 2, citing Prosser, Privacy (1960) 48 Cal. L.Rev. 383, 389.) Historically, courts were reluctant to permit celebrities to rely on this privacy right, since their fame seemed inconsistent with the injury to solitude or personal feelings implicitly required. (Rest.3d Unfair Competition, 46, Appropriation of the Commercial Value of a Person's Identity: the Right of Publicity, p. 529.) In Haelan Laboratories v. Topps Chewing Gum (2d Cir. 1953) 202 F.2d 866, 868, certiorari denied (1953) 346 U.S. 816 74 S. Ct. 26, 98 L. Ed. 343, a court, for the first time, recognized a distinction between the personal right to be left alone and the economic right to exploit one's own fame. California recognizes the right to profit from the commercial value of one's identity as an aspect of the right of publicity. (Comedy III, supra, 25 Cal. 4th at p. 391; Dora v. Frontline Video, Inc. (1993) 15 Cal. App. 4th 536, 541-542 18 Cal. Rptr. 2d 790 (Dora).) The anomaly of a celebrity suing for loss of privacy was noted by Samuel Warren and Louis Brandeis in their 1890 essay that first adopted the term "right to privacy." "The general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn." (Warren & Brandeis, the Right to Privacy (1890) 4 Harv. L.Rev. 193, 215.)