Enter to open, tab to navigate, enter to select
California Appeal Court Holds that Certain Right of Publicity Claims May be Assigned
Practical Law Legal Update 8-581-4225 (Approx. 3 pages)
California Appeal Court Holds that Certain Right of Publicity Claims May be Assigned
by Practical Law Intellectual Property & Technology
| Published on 16 Sep 2014 • USA (National/Federal) |
In Timed Out, LLC v. Youabian, Inc., the California Court of Appeal reversed the trial court's ruling that two models could not assign their rights in misappropriation of likeness claims to the Plaintiff. The court also held that those claims are not preempted by the Copyright Act.
On September 12, 2014, the California Court of Appeal, Second District, Division 3 issued an opinion in Timed Out, LLC v. Youabian, Inc., reversing the Superior Court of Los Angeles County, which held that a cause of action for misappropriation of likeness is not assignable, and vacating the order granting Youabian's motion for judgment on the pleadings (No. B242820, (Cal. App. Sept. 12, 2014).
In or around July 2011, after two (non-party) fashion models discovered Youabian, Inc. had been using their images on its website without their consent, the models assigned their rights to Timed Out, LLC to bring suit for misappropriation of their images. Youabian moved for judgment on the pleadings, asserting, among other things, that Timed Out lacked standing to sue on behalf of the models because the right of publicity is personal and cannot be assigned. The trial court, relying on Lugosi v. Universal Pictures, agreed with Youabian and granted the motion (160 Cal. Rptr. 323 (1979)). Timed Out appealed.
On appeal, the California Court of Appeal considered whether:
- The pecuniary interest protected by the right of privacy is assignable.
- A cause of action for misappropriation of likeness is assignable.
First, the court pointed out that the trial court incorrectly read Lugosi to prohibit assignment of the right of publicity. The court noted that although the California supreme court in Lugosi stated that the right to exploit name and likeness is personal, it did not prohibit assignment. Instead it merely clarified that only the owner of the right had the authority to assign that right. Likewise, California Civil Code § 3344.1 plainly states that the right of publicity can be assigned by a deceased personality during his or her lifetime.
Next, the court addressed Youabian's assertion that even if the right of publicity is assignable, Timed Out did not have standing because the models only assigned the naked right to sue for misappropriation and Timed Out did not receive any other rights or duties with the assignment. The court rejected this argument, reasoning that:
- The right of publicity protects an economic interest and Timed Out sued to recover monetary damages, including the profits or gross revenues that Youabian received for the alleged commercial misappropriation of the models' images.
- Even if the models' assignment was limited to the unauthorized display of their images on Youabian's website, this was sufficient to provide the plaintiff with standing to sue because:
- none of the relevant cases suggested that an assignment must cover the entire right of publicity to be enforced; and
- the complaint's allegations support an inference that the assignment covered the pecuniary interest in more broadly exploiting the models' likeness.
The court also concluded that the misappropriation of likeness claims are not preempted by copyright law because:
- The models' likenesses are not copyrightable.
- The right of publicity does not fall within the subject matter of copyright.