Name and Likeness Disputes
Many celebrities are struggling to protect their name and likeness from unlicensed and non-permitted use of their voice, name, image, signature or photograph. Once their name and likeness has been mis-used or misrepresented, there is a possibility that publicity rights damages have occurred.
What is Right of Publicity?
Publicity rights govern an individual’s ability to control, protect, and commercialize their own name and likeness, as well as other characteristics unique to them that could constitute defensible intellectual property. Publicity rights are not recognized or enforced by any federal statute, and while most states have statutes or case law recognizing them, they differ on other aspects that impact the lifespan and transferability of those rights.
The Nevium Approach to Right of Publicity Damages
The valuation of publicity rights and calculation of economic damages can vary from one celebrity to another. To arrive at a calculation of fair and reasonable damages, publicity rights experts must analyze the industry and marketplace in which the publicity rights were used, the celebrity’s endorsement history and professional accomplishments, public awareness and perception of the celebrity, and different measures of the reach and impact of the mis-use, including the total number of impressions achieved. In other words, who, where, and when need to be quantified along with the how much mis-use occurred.
With the advent of the Internet and social media, the misuse of celebrity names, images and stock photographs can be more easily detected, and more and more right of publicity litigation is being pursued. In a typical right of publicity litigation, the Plaintiff introduces large damage numbers based on the value the celebrity’s past endorsement contracts and the Defendant introduces data and information indicating the claimed mis-use had little or no impact on financial performance.
Nevium’s professionals have been retained as publicity rights damages experts in several recent lawsuits. We have incorporated Internet and social media analytics to quantify the “how much” in right of publicity claims. We have used Google, Facebook, Twitter, Search Engine and YouTube analytics to determine the number of impressions achieved during the damages period, or how many people actually saw the infringing use of the celebrity’s name and likeness. Analysis of this data can provide accurate impression numbers that are used to support economic damages opinions and support other remedies such as injunctive relief and statutory or punitive damages
Publicity Rights Damages Expert Witness Experience
Colonel David Randolph Scott v. Citizen Watch Company of America, Inc., Sterling Jewelers, Inc. dba Kay Jewelers; Case No.: 17-cv-00436-NC; USDC Northern District of California San Jose Division. Right of Publicity, Expert report, 2018
The Julia Child Foundation for Gastronomy and the Culinary Arts v. Airbnb, Inc., Superior Court of the State of California for the County of Santa Barbara, Case No. 16CV02626. Right of Publicity & SEO, Expert Report & Mediation Testimony, 2016
Timed Out, Inc. vs. Crazy Horse, Inc., Superior Court of the State of California, County of San Francisco – Civic Center Courthouse, Case No. CGC-15-547904. Right of Publicity & SEO, Expert Report, 2016
Nina Pham v. Texas Health Resources, Inc., District Court of Dallas County, Texas 68th Judicial District, Cause No. DC-15-02252. Right of Publicity & SEO, Expert Report & Deposition, 2016
Mark Spitz v. New Vitality LLC, NAC Marketing Company, Superior Court of California County of Los Angeles, Case No. SC121977. Expert Consulting, 2016
Reese Witherspoon v. LNT Acquisition LLC, et al., Case No. SC120883, Superior Court of the State of California, County of Los Angeles, West District. Expert Report, 2016
Cynara Busch v. Jakov Dulcich and Sons, LLC, Sunlight International Sales, Inc. Case No. CIV 1404125, Superior Court of the State of California, County of Marin, Expert Consulting, 2015
Markwins Beauty Products, Inc. v. Krystal Ball Productions, Inc. and Fergie Duhamel, Arbitration, Pasadena, CA. Expert Report, 2015
Scott Ehredt v. Medieval Knights, LLC, JAMS Arbitration No. 1220047549, Expert Report 2015
Reese Witherspoon v. Marketing Advantages International, Inc., et al., Case No. SC120883, Superior Court of the State of California, County of Los Angeles, West District, Expert Consulting 2014
Jason Olive vs. General Nutrition Centers, Inc., Case No. BC482686, Superior Court for the State of California, County of Los Angeles. Expert Consulting, 2014
The Julia Child Foundation for Gastronomy and the Culinary Arts v. DGWB Advertising and Communications, Case No. 8:12-CV-1402SJO, United States District Court, Central District of California. Expert Report and Deposition, 2013
David Wolfe, v. Sunfood, LLC, et al.; Case No. 37-2011-00066729-CU-CO-CTL, Superior Court of the State of California for the County of San Diego. Deposition, 2013
Ricky D. Ross v. William Leonard Roberts, II; CV10-4528-PA (RZx), The United States District Court for the Central District of California, Western Division – Los Angeles. Rebuttal Opinion, 2012
John Frederick Dryer, et al. v. National Football League; 0:09-cv-02182-PAM-AJB, United States District Court, District of Minnesota. Expert Opinion, 2009
Publicity Rights Damages and Valuation Expert Consulting Experience
Using the Market Approach, used comparable celebrity licensing agreements to emphasize royalty rate, compensation structure to a Celebrity contemplating a product endorsement
Calculated impact on touring revenues and merchandise sales due to a musician leaving their band
Valued a celebrity name and likeness and celebrity licensing opportunities for estate and tax planning
Built a hypothetical name and likeness licensing agreement to mitigate the damages in a rights of publicity name and likeness dispute
Contact us to discuss your right of publicity or celebrity endorsement related issue. The following case study and article provide more information about Right of Publicity and Celebrity Endorsement issues