Without My Consent

a.    Introduction

 

Pursuant to the Cal. Civ. Code § 3344, a person may sue for having their photograph used for a commercial purpose without his or her consent. A victim of the online publication of intimate photos or videos may sue the user of the material if s/he can argue that the user is deriving a commercial benefit from the material’s publication.

   

b.    Text of the Statute

 

“(a) Any person who knowingly uses another's…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…shall be liable for any damages sustained by the person or persons injured as a result thereof….

 

(b) As used in this section, "photograph" means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.

   

(1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.

          

[…]

 

(g) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.”1

 

c.    Cases

Procedural Posture: Appeal from summary judgment in favor of defendants. Summary judgment was granted because plaintiff failed to file timely opposition to the motion. Also ruled that defendants were entitled to summary judgment on the merits.

 

Law: Cal. Civ. Code § 3344 (among others including libel, false light, publication of private facts, unlawful intrusion, common law misappropriation, statutory misappropriation, infliction of emotional distress). 

 

Facts: Plaintiff is an actor and model. Photos at issue were taken without plaintiff’s permission while he was at a gay club that forbade cameras and photography of the patrons. Plaintiff alleged that the photos revealed his homosexuality to his family and friends for the first time. He alleged that the placement of the photographs in an article about drug use and unsafe sex practices at gay parties falsely portrayed him as a “drug whore.”

 

Outcome: Plaintiff had no recognizable misappropriation claim. The publication was protected by the First Amendment: “Publication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it, is not ordinarily actionable.” “For purposes of this section, a use of a . . . photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, . . . shall not constitute a use for which consent is required under subdivision (a).” In this case, the article was newsworthy: “The gay life-style is an element of popular culture and the Article about aspects of that life-style is protected by the First Amendment.”

 

Procedural Posture: Plaintiff appealed trial court’s judgment granting defendant's motion for summary judgment stating that plaintiff's claim, under Cal. Civ. Code §3344, for defendant's commercial appropriation of the plaintiff’s photographs, when the defendant made an unauthorized commercial display on his website, was preempted by the federal Copyright Act.

 

Law: Cal. Civ. Code §3344.

 

Facts: Plaintiff owned the copyright to explicit photographs of models and displayed them on his own website. Defendant took plaintiff’s copyrighted pictures without permission and used them on his own website for commercial purposes. None of the models were known celebrities and the photographers were not “masters of the genre.”

 

Outcome: Reversed and remanded. California’s appropriation statute is not limited to celebrity plaintiffs. Failed the two-part preemption test because, 1) the subjects of the claims are the models' likenesses, which are not copyrightable even though they are embodied in a copyrightable work, and 2) “the right asserted under the state statute, the right of publicity, does not fall within the subject matter of copyright.”

 

d.    Practice Pointer

 

The California appropriation statute adds two elements to the common law tort of appropriation. The defendant must have made a knowing use of the likeness for purposes of advertising or solicitation or purchases and the plaintiff must establish a "direct connection" between the use and the commercial purpose.