Tuesday, September 16, 2014
C.A. Rules Personal ‘Publicity’ Claim Assignable, Not Preempted
Court Says a Likeness, Unlike a Photograph, Is Not Protected by Copyright
By a MetNews Staff Writer
A claim for unauthorized use of a person’s likeness, based on California’s “right of publicity,” is not preempted, even if the likeness is embodied in a copyrightable work such as a photograph, and is assignable, the Court of Appeal for this district ruled Friday.
Div. Three reinstated a suit by Timed Out, LLC, which claimed that two models had assigned their rights to Timed Out after discovering that their likenesses were used by Dr. Kambiz Youabian of Los Angeles on a website advertising cosmetic medical services.
Los Angeles Superior Court Judge Norman P. Tarle had dismissed the suit on the ground that that the right of publicity was “personal” and could not be assigned. But Justice Patti S. Kitching said that both the pecuniary interest protected by the right of privacy, and a cause of action for misappropriation of one’s likeness, are assignable.
The trial judge, she said, erred in citing Lugosi v. Universal Pictures (1979) 25 Cal.3d 813 as authority for the ruling. While Lugosi held that an individual’s right of publicity dies with that person, she explained, the court recognized that the right could be assigned by the individual during his or her lifetime.
(California enacted Civil Code §3344.1 in 1985. The law provides that rights of publicity survive the death of a “personality” and may be inherited.)
‘Thing in Action’
Kitching rejected the defense contention that even if the models could assign their publicity rights, they could not assign “the naked right to bring suit for misappropriation.” She cited Civil Code §954, which allows the owner of a “thing in action” to assign it.
The rights assigned by the models are things in action, not “personal” claims such as tort causes of action, the justice said, explaining:
“[T]hough the right of publicity is described as ‘personal’ in nature, this simply means that the owner of the right has exclusive authority to assign it during his or her lifetime…. More to the point, unlike the other interests grouped under the privacy rubric [intrusion upon seclusion or solitude, public disclosure of embarrassing facts, or ‘false light’ publicity] the right of publicity distinctly protects an ‘economic interest.’”
Timed Out, she explained, isn’t suing “for injury to the feelings, emotional distress or personal injuries to the Models,” but only for economic injuries resulting from the commercial misappropriation of their likenesses.
Nor, she said, is there any requirement that the rights be “exclusive” in order to be assigned.
Turning to the preemption issue, Kitching wrote that while the photographs on the website are protected by copyright, the defendant is not being sued for publishing the photographs, but for misappropriating the likenesses pictured.
Because the likenesses themselves are not copyrightable, and because the right of publicity “does not fall within the subject matter of copyright,” there is no preemption, the jurist said.
Attorneys on appeal were Timothy A. Hall and Ani Aghajani of the Law Offices of Hall & Lim and Eric S. Engel of Conkle Kremer & Engel for the plaintiff and Raymond J. McMahon and Kevin J. Grochow of Bonne, Bridge, Mueller, O’Keefe & Nichols for the defendants.
The case is Timed Out, LLC v. Youabian, Inc., 14 S.O.S. 4132.
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