RIGHT TO PUBLICITY

Both California and New York recognize the right to publicity as a statutory and common law right to limit the public use of one's name or likeness in the commercial context. This right derives from the notion that a celebrity or noteworthy individual should not be subjected to the false and misleading impression that it is endorsing a product or service absent permission, and sometimes compensation.

Due to the nature of the entertainment industry and the increasing market for licensing of deceased celebrity brands, publicity rights have been a particular concern in California and New York. In California, the right to publicity is found in California Civil Code Section 3344 and 3344.1 which particularly applies to the heirs of deceased persons. New York also recognizes a statutory right to publicity which is embodied in New York Civil Rights Law sections 50 and 51.

To make out a publicity rights claim under the common law, a plaintiff must plead and prove that a defendant "(1) used plaintiff's identity; (2) appropriated plaintiff's name and likeness to defendant's advantage, commercial or otherwise; (3) lack of consent; and (4) resulting injury." To establish the statutory cause of action in California, the plaintiff must also show knowing use of the plaintiff's name, photograph or likeness for commercial purposes, and a direct connection between the use and the commercial purpose. New York's section 51, however, "consists of only two elements: the commercial use of a person's name or photograph and the failure to procure the person's written consent for such use."

McLain Law Firm represents various individuals with regard to their publicity rights including celebrity brand identities and the heirs of deceased celebrities. Services include:

Feel free to contact us today. In California please call (949) 500-2818. For services in the New York Metropolitan area, please call (949) 500-2818. You may also email Erik McLain at em@mclainfirm.com.