Common Law Right of Publicity in California: Misappropriation of Identity and Available Damages

A person’s identity can have commercial value. In California, the common law right of publicity protects against the unauthorized use of a person’s identity for another’s advantage. This claim often appears in advertising, merchandising, social media, influencer, and endorsement disputes.

Unlike defamation, which focuses on false statements, and unlike copyright, which protects creative expression, the right of publicity protects against the unauthorized commercial exploitation of identity itself.

What Must Be Proven?

Under California common law, a plaintiff generally must prove:

1 The defendant used the plaintiff’s identity.

2 The appropriation of identity was to the defendant’s advantage, commercially or otherwise.

3 The plaintiff did not consent.

4 The plaintiff suffered resulting injury.

This sounds straightforward, but each element has depth.

Use of Identity

The defendant does not always need to use the plaintiff’s full legal name. Depending on the context, liability may arise from the use of a photograph, likeness, nickname, voice, distinctive identity traits, or some other feature that clearly evokes the plaintiff. The question is whether the defendant appropriated identity in a recognizable way.

Advantage to the Defendant

Commercial advertising is the most common setting, but the benefit to the defendant can take different forms. It may be increased sales, promotional value, audience attention, brand credibility, or some other advantage obtained by trading on the plaintiff’s persona.

Lack of Consent

Consent is a complete defense if it covers the actual use at issue. Many right-of-publicity disputes turn on scope: whether consent existed, what it covered, how long it lasted, and whether the challenged use exceeded the parties’ agreement.

Injury

Injury may consist of economic loss, loss of licensing value, interference with endorsement opportunities, or other harm flowing from the misappropriation. In some cases, dignitary or emotional harm may also be part of the picture, depending on how the claim is framed and proven.

What Damages May Be Available?

1. Actual Damages

Actual damages often focus on the commercial value of the identity appropriated. That may include the fair market value of a license, lost endorsement fees, lost licensing opportunities, or diminished control over one’s commercial persona. In cases involving professionals, creators, or public-facing business owners, the economic value of identity can be substantial even where the person is not a celebrity.

2. Defendant’s Profits or Unjust Enrichment-Type Recovery

In appropriate cases, courts may look at the benefit the defendant obtained by exploiting the plaintiff’s identity. Where the use drove sales or promotional value, the defendant’s gain may become part of the remedial analysis, particularly in equity.

3. Emotional Distress and Personal Harm

Because the common law doctrine has roots in privacy law as well as commercial appropriation, some cases involve not only economic injury but also humiliation, loss of control, or emotional distress. Whether those damages are available and how they are measured depends heavily on the theory pleaded and the proof offered.

4. Punitive Damages

Because this is a tort claim, punitive damages may be available if the plaintiff proves oppression, fraud, or malice under California law. Deliberate exploitation after notice, forged consent, or knowingly deceptive endorsement tactics can increase exposure.0

5. Injunctive Relief

An injunction  may be especially important in right-of-publicity cases because unauthorized use often continues in advertising, online campaigns, or product packaging. Stopping the misuse quickly may matter as much as recovering money.

Why Plaintiffs Often Pair This Claim With Others

Common law publicity claims are frequently brought together with Lanham Act false endorsement claims and California statutory publicity claims. That is because each theory protects a different legal interest:

• The Lanham Act focuses on consumer confusion.
• The common law right of publicity focuses on unauthorized appropriation of identity.
• California’s statute adds specific remedies, including a minimum damages provision.

Using multiple theories can provide a fuller remedial picture, but each claim still must be proved on its own elements.

This post is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship.