Author: Eleanor B. Atkins
A California appeals court recently clarified that the right of publicity is assignable during one’s lifetime under California law.
In Timed Out, LLC v. Youabian, Inc. (Case No. B242820), two models assigned their right to sue after discovering their image and likeness were being used to advertise cosmetic medical services without their consent. The two models were not party to the suit, having assigned their rights to plaintiff Timed Out, LLC. Among other things, the defendant argued that the plaintiff lacked standing because the assignment was invalid.
While the trial court granted the defendant’s motion for summary judgment, finding the right of publicity to not be assignable because it is personal in nature, the California appellate court reversed, finding that the right to publicity is assignable and that the right that had been validly assigned in this case.
Both courts discussed the California Supreme Court case, Lugosi v. Universal Pictures, which held that the right of publicity does not survive a celebrity’s death if it was never exploited by the celebrity during his or her lifetime. The appellate court criticized the trial court’s interpretation of Lugosi’s labeling of the right of publicity as “personal”: “[T]he personal nature of the right restricts who can assign it — not whether the right of publicity can be assigned.” Noting that the right of publicity “distinctly protects an ‘economic interest,’” the court stated that assignment of it falls within the “broad rule of assignability.”
This case clarifies that at least under California law the right of publicity is assignable during one’s lifetime, even if the right conveyed is limited to the right to sue for a particular instance of misappropriation.
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