California’s statutory right of publicity, Civil Code section 3344, is one of the state’s best-known commercial identity protections. It applies when a person’s name, voice, signature, photograph, or likeness is knowingly used without consent on or in products, merchandise, or goods, or for advertising or selling goods or services.
This statute often appears in cases involving advertising campaigns, social media promotions, product packaging, online marketing, and unauthorized endorsements.
What Must Be Proven?
A plaintiff suing under section 3344 generally must prove:
1 The defendant knowingly used the plaintiff’s name, voice, signature, photograph, or likeness.
2 The use was on or in products, merchandise, or goods, or for purposes of advertising, selling, or soliciting purchases of goods or services.
3 The plaintiff did not consent.
4 The plaintiff suffered injury.
5 There was a direct connection between the use and the commercial purpose.
The statute is focused on commercial exploitation. Not every reference to a person in a publication triggers liability. Context matters, especially where expressive works or editorial uses are involved.
“Readily Identifiable” Matters for Photographs
If the claim is based on a photograph, the plaintiff must be readily identifiable. The statute explains that a person is readily identifiable when someone viewing the image with the naked eye can reasonably determine that the person depicted is the one complaining of the unauthorized use.
That means a vague crowd shot or an unrecognizable background appearance may not be enough. But a recognizable image used to help sell a product or service can squarely implicate the statute.
The Statute’s Damages Scheme Is One of Its Biggest Features
Section 3344 is often pleaded because it supplies a concrete remedial framework.
1. The Greater of $750 or Actual Damages
A prevailing plaintiff may recover the greater of $750 or actual damages. That minimum statutory amount is important in smaller cases where the unauthorized use is obvious but the economic loss is hard to quantify. In larger cases, actual damages may far exceed the statutory floor.
2. Defendant’s Profits Attributable to the Unauthorized Use
The statute also allows recovery of profits from the unauthorized use that are not already taken into account in computing actual damages. This can substantially increase exposure where the use appeared in a successful campaign or sales-driven promotion.
The burden structure matters. The plaintiff generally needs to prove gross revenue attributable to the unauthorized use, and the defendant then has the burden to prove deductible expenses.
3. Punitive Damages
Punitive damages may also be awarded. That makes section 3344 significantly more potent than many business tort statutes. A willful, exploitative, or knowingly deceptive use of identity can therefore carry meaningful risk beyond compensatory relief.
4. Attorney’s Fees and Costs
Another major feature of section 3344 is fee shifting. The prevailing party is entitled to attorney’s fees and costs. That can materially affect case value and settlement posture on both sides.
5. Injunctive Relief and Temporary Restraining Orders
The statute expressly permits injunctive relief. A plaintiff can seek an order requiring the defendant to remove, recall, or cease publication or distribution of the unauthorized use. In the right case, that allows the plaintiff to address ongoing misuse quickly rather than waiting only for a damages award at the end of the case.
Limits and Defenses
Section 3344 is not limitless. Consent remains a full defense. The statute also includes protections for media entities in certain circumstances unless knowledge is shown, and it recognizes that not every use in a commercially sponsored medium automatically counts as a use requiring consent. Courts look closely at whether the identity was directly connected to the advertising or sales purpose.
Why This Claim Is So Common
Plaintiffs often plead section 3344 alongside false endorsement and common law publicity claims because the statute provides a clear elements framework and unusually strong remedies: a damages floor, profits, punitive damages, fees, costs, and injunctions. In many identity-misuse cases, it is one of the most practical and consequential California claims available.
This post is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship.
