§ 1449.Unauthorized Use of Another Person's Rights of Publicity - Damages - Consent - Presumptions - Fact Questions - Exemptions

Section 1449 is Section 1448's counterpart for the living. Anyone who knowingly uses another person's name, voice, signature, photograph, or likeness -- without that person's consent, or a minor's parent or guardian's consent -- on merchandise or in advertising is liable for damages. As with the deceased-personality statute, the injured party need only prove the gross revenue attributable to the use, the defendant has to prove deductible expenses, and punitive damages and attorney's fees are available to the prevailing party.

The section defines "photograph" by a "readily identifiable" standard: whether someone viewing it with the naked eye can tell the person depicted is the one complaining. When a photograph shows more than one identifiable person, each has to be represented as an individual rather than merely as part of a "definable group" -- the statute gives examples like a crowd at a sporting event or the audience at a play -- and a person counts as part of such a group only if they appear solely because they happened to be present, not because they were singled out. A separate presumption favors employers: if an employee's photograph or likeness is only incidental to a publication, not essential to its purpose, the law presumes the failure to get consent wasn't a knowing use.

The same exemptions found in Section 1448 apply here. Use for news, public affairs, or sports coverage, or in a political campaign, doesn't require consent. Commercial sponsorship alone doesn't create liability -- whether the use was directly connected to the sponsorship is a question of fact. And media owners and employees who run an unauthorized ad aren't liable unless they knew the use was unauthorized.