Appropriation of Name or Likeness as a Cause of Action in California

Appropriation of name or likeness as a cause of action in California protects a person from the unauthorized use of identity for another party’s benefit. The claim generally applies when a defendant uses the plaintiff’s name, image, appearance, or another identifying feature without permission and causes injury. Under the test stated in Eastwood v. Superior Court, the plaintiff must prove four elements involving use of identity, appropriation for an advantage, lack of consent, and resulting injury.

Use of Identity in a California Name or Likeness Claim

The first element requires the defendant to have used the plaintiff’s identity. Identity can be communicated through a person’s name or physical likeness, but the central question is whether the use points to the plaintiff as an identifiable individual.

A plaintiff would generally need to show that the defendant’s publication, advertisement, product, message, or other conduct referred to the plaintiff. A direct use of the plaintiff’s full name or photograph may make identification clear. In other situations, distinctive features or surrounding details may be relevant if they cause the audience to recognize the plaintiff.

This element matters because appropriation of name or likeness as a cause of action in California is based on the use of a particular person’s identity. A general resemblance, unidentified figure, or reference that does not reasonably identify the plaintiff may not satisfy the stated test.

Appropriation of Name or Likeness for the Defendant’s Advantage

The second element requires the defendant to appropriate the plaintiff’s name or likeness for the defendant’s advantage, whether commercially or otherwise. Appropriation means taking or using the identity for a purpose that benefits the defendant.

The advantage may be commercial, such as using a person’s image to advertise a business, sell a product, attract customers, or promote a service. However, the test is not limited to direct financial profit. The quoted authority recognizes that the advantage may be commercial or otherwise, which means the plaintiff must connect the use of identity to some benefit sought or obtained by the defendant.

This element separates a legally significant use from a use that provides no meaningful advantage to the defendant. The plaintiff should therefore explain how the defendant used the identity and what the defendant expected to gain from doing so.

Lack of Consent in a California Appropriation Claim

The third element requires proof that the plaintiff did not consent to the use. Consent means permission. If the plaintiff authorized the defendant to use the name or likeness in the manner at issue, this element may not be established.

A plaintiff may show lack of consent by explaining that permission was never requested or granted. Written agreements, emails, text messages, licensing documents, or communications between the parties may help determine whether authorization existed and, if so, how far it extended.

The scope of any permission is important. A person may agree to one use but not another. For example, permission to use a photograph in a private presentation may not necessarily authorize its use in an advertising campaign. This element ensures that appropriation of name or likeness as a cause of action in California focuses on unauthorized use rather than a use the plaintiff knowingly approved.

Injury Caused by Unauthorized Use of Name or Likeness

The fourth element requires resulting injury. The plaintiff must connect the unauthorized use of identity to some form of harm. It is not enough merely to show that the defendant used the plaintiff’s name or likeness without consent. The plaintiff must also establish that the use caused an injury.

The injury may involve financial loss, harm to reputation, emotional distress, loss of control over the use of identity, or another consequence supported by the facts. The type of proof will depend on the nature of the alleged harm. Financial records, business evidence, communications, witness testimony, or evidence showing the context and reach of the use may be relevant.

This element completes the claim by linking the defendant’s conduct to an actual effect on the plaintiff. It also helps the court evaluate whether relief is appropriate and what form that relief should take.

Conclusion: Appropriation of Name or Likeness as a Cause of Action in California

Appropriation of name or likeness as a cause of action in California requires proof of four connected elements. The plaintiff must establish that the defendant used the plaintiff’s identity, appropriated the plaintiff’s name or likeness for an advantage, acted without the plaintiff’s consent, and caused resulting injury. Each element addresses a separate part of the claim, and failure to prove any one of them may prevent recovery. A successful claim therefore depends on clear evidence showing both the unauthorized use and the harm that followed.

Find the Law

“A common law cause of action for appropriation of name or likeness may be pleaded by alleging (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. (See Prosser, Law of Torts (4th ed. 1971) § 117, pp. 804-807; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 606, p. 2244.)” Eastwood v. Superior Court, 149 Cal.App.3d 409, 417, 198 Cal.Rptr. 342 (1983)