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Parody Laws:

CALIFORNIA RIGHT OF PUBLICITY AND LAW CONCERNING PARODIES

California's right of publicity statute provides:
Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without such person's prior consent . . . shall be liable for any damages sustained by the person or persons injured . . . .

Cal. Civil Code § 3344(a) (West 1999). Under this provision, one may not knowingly use the photograph of another for commercial use without the permission of the subject, regardless of who owns the photograph. The same rules apply for using the name, voice, signature or likeness of another. The statute provides an exception for using another's name, voice, etc. for news, public affairs, sports broadcasts or political campaigns. See id. § 3344(d).

A party damaged by a violation of the statute may sue for injunctive relief and recover the greater of actual damages, including profits from the unauthorized use, or $750, plus punitive damages and attorneys' fees and costs. California's common law also provides for a right of publicity that is broader than the statutory right. The elements of a common law right to publicity claim are:

defendant's use of the plaintiff's identity;
appropriation of plaintiff's name or likeness to defendant's advantage, commercial or otherwise;
lack of consent; and
resulting injury.

Unlike the statutory action, the common law right of publicity does not require a knowing use of the plaintiff's identity or a direct connection between the use and the commercial purpose.

Under California law, a party may not use the identity of another, including photographs of another, without permission or authorization. The law does not take into account who owns the photograph or the physical object on which the signature, image or likeness is contained. The common law also is clear that even non-commercial uses of another person's identity may violate one's right of publicity.

Parody. The law regarding parodies is based upon the "fair use" doctrine under the U.S. Copyright Act. Under this doctrine, certain uses of copyrighted works, which would otherwise be considered infringing, are permissible.

In 1994, the U.S. Supreme Court decided Campbell v. Acuff-Rose Music, Inc., which involved 2 Live Crew's parody of Roy Orbison's famous song, "Pretty Woman." In determining that the song at issue was a parody, the Court emphasized the "transformative nature" of the parody. The Court did not set forth a bright-line rule for determining when a parody will be protected, but stated that each parody must be judged on a case-by-case basis.

Courts consider four factors in determining whether a parody constitutes fair use and thus is not an infringement:

the purpose and character of use, including whether such use is of commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

In addition, courts may consider any other relevant factors not specifically enumerated under the Copyright Act. In general, the following principles have emerged from the law on the doctrine of fair use:

Parodies generally enjoy a high degree of protection under the law. Courts generally view parodies as important means of expression that should be protected.
Parodies for nonprofit purposes are more likely to be deemed fair use than those for commercial purposes. This factor, however, is not determinative.
The more the author of the parody changes the original work in creating the parody, the more likely the parody will be considered fair use.

In summary, the law surrounding parodies is factually based. Accordingly, any use of a copyrighted work claiming to be a parody should be reviewed by legal counsel.

The information contained in this memorandum generally describes California's law on the right of publicity and the fair use doctrine. It is for information only and is not a substitute for legal advice or individual analysis of a particular legal matter. Readers should not act without seeking professional legal counsel. Transmission and receipt of this publication does not create an attorney-client relationship. This memorandum may not be provided to or relied upon by any third party without the prior written permission of Bell, Boyd & Lloyd LLC. For information call 312.372.1121.

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All Rights Reserved
Bell, Boyd & Lloyd refers to Bell, Boyd & Lloyd LLC and Bell, Boyd & Lloyd PLLC. attorneys@bellboyd.com

1See Michaels v. Internet Entertainment Group, 5 F. Supp.2d 823 (C.D. Cal. 1998); Cal. Civil Code § 3344(a).
2See Michaels, 5 F. Supp.2d at 836.
3See Michaels, 5 F. Supp.2d at 837. See also Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998).
4See Newcombe, 157 F.3d 686, 692; Michaels, 5 F. Supp.2d at 837.
5See 510 U.S. 569 (1994).
617 U.S.C. § 107.

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