Right of Publicity

The Right of Publicity grants individuals the exclusive right to control the use of their identity for commercial purposes. In California, Civil Code Section 3344 protects a natural living persons’ name, image, voice, signature, photograph, and likeness from unauthorized commercial use. A violation of this statute gives rise to statutory damages and attorney’s fees.

California also protects deceased individuals for up to 70 years after their death, so long as the holder of the deceased person’s right of publicity registers with the California Secretary of State and that deceased person’s right of publicity had commercial value at the time of their death. The post-mortem right of publicity is generally limited to those who were famous at the time of their death. Creative and informational works are generally exempt from post-mortem right of publicity claims.

California Courts also recognize common-law right of publicity claims as part of the intellectual property family. To prove a violation of that right, a plaintiff must prove: (1) defendant’s use of plaintiff’s identity; (2) use was to defendant’s advantage, commercial or otherwise; (3) lack of consent; and (4) injury. While “identity” is construed broadly in California, common law claims do not come with the same right to statutory damages and attorney’s fees and can be cabined by a defendant’s First Amendment Rights.

About half of states recognize the right of publicity, whether by statute or through the state’s common law. Many of these states also recognize a post-mortem right of publicity ranging from 10 to 100 years from the date of the celebrity’s death.

Legal Services

At Phillips, Erlewine, Given & Carlin, our attorneys know the importance of protecting our clients’ name, image, and likeness from unwanted commercial exploitation. We provide comprehensive legal counsel to clients in the entertainment industry and elsewhere, ensuring their rights are protected in this digital age. Our expertise includes:

1. Advising and Negotiating: We advise clients and negotiate agreements for them. We ensure our clients receive fair compensation for the use of their likeness or other recognizable personal attributes. We strive to ensure that our clients’ interests are protected and that they have full control over how their identity is utilized for commercial purposes.

2. Litigation and Enforcement: When a client’s right of publicity has been violated, our seasoned litigators are ready to assert their rights in court. We have a proven track record of successfully representing clients in litigation and obtaining favorable settlements for them.

3. Intellectual Property Protection: We help clients navigate the intersection between right of publicity and intellectual property rights, including trademarks and copyrights. While those laws are distinct and each has their own nuances, the rights they protect often overlap. Our attorneys are well-versed in each of those three fields and can optimize our clients’ ability to protect their name, image, brand, and creative works as a cohesive unit.

4. Protecting Your Image in the Digital Age: With the rise of digital media, social media, and most recently, artificial intelligence, the right of publicity landscape has never been more complex, and protecting that right has never been more important. Our team stays up-to-date with the latest legal and technical developments to advise clients on the implications of their online presence and protect their rights in the digital age.

Our Approach

The Right of Publicity is unique to each individual seeking to protect theirs. That’s the way we treat our clients. Our personalized approach allows us to develop tailored legal strategies that align with our clients’ goals. We provide proactive advice, ensuring our clients are well-informed on their rights and options at every step. Our commitment to our clients’ legal needs, combined with our in-depth understanding of right of publicity laws, make us trusted advocates for our right of publicity clients. We are dedicated to helping you protect your rights.

Why Choose Us?

Expertise and Experience

Our attorneys have extensive experience in copyright, trademark, and right of publicity transactions. Our firm has successfully assisted numerous clients in the entertainment industry and elsewhere in shepherding transactions from the idea stage through to close and implementation. We stay up to date with the latest changes in the law and in the industries in which our clients operate to ensure our clients receive accurate and relevant legal advice.

Tailored Solutions

Our approach to intellectual property transactions is highly individualized. We strive to understand our clients’ specific business goals and provide tailored solutions to match those objectives. Our dedication to personal attention ensures that each of our clients’ transactions receive the best possible legal support.

Client-Centered Approach

At Phillips, Erlewine, Given & Carlin, our clients are our top priority. Our client relationships are based on trust and clear communication. Our team takes the time to understand our clients’ concerns, answer their questions, and guide them through the complexities of their rights and transaction. We ensure that our clients are well-informed at every step in the process.

Contact us today to discuss your options.

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