Legally Speaking – with Bob Mionske

By Robert Mionske JD
This report filed January 2, 2003

Dear Mr. Mionske
I am a professional triathlete and have a question about a company using my picture in an advertisement in a way that implies I endorse the product(which is not true). Do I have any legal rights? I live in California, which is where the advertisement was run and where the company that ran the ad is located.
Name withheld by request

Dear Tri-guy
The unauthorized use of a performer or celebrity name or image may be a violation of both state and federal copyright law. The tort of “invasion of privacy, false light may have been committed. Your right of publicity may have been violated as well. On the federal level, the Lanham Act may apply.

On the state level, look to California Civil Code 3344 (the Fred Astaire celebrity protection act). Leading cases that may control in your jurisdiction include Midler V. Ford 849 f.2d 460 (9th cir. 1988) (the “sound alike” case), Presley Enterprises v. Capece, 950 F. Supp. 783 (S.D. Tex. 1996) (the “velvet Elvis” case) and Astaire v. Best Film & Video 1997 WL 336110 (9th Cir. Jun. 20, 1997).

In terms of damages, the California Civil Code 3344 affords damages to a person injured by another who uses the person’s “name, voice, signature, photograph or likeness in any manner”. The company may be liable for a fixed sum and/or profits obtained by the unauthorized use of your likeness.

If you simply want them to stop, consider sending a cease and desist letter with reference to the above listed controlling law.
Good luck-Bob

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