Legal Memorandum About The Case In CReAC Writing Style

Legal Memorandum About The Case Below In Creac Writing Style

Issue(s)/Question(s) Presented:

Whether Jake Daly can successfully sue Mountain Beer and Celeb Magazine for infringement of his right of publicity under California law, considering the use of his likeness in an advertisement without authorization, in light of the statutory protections of California Civil Code § 3344 and the First Amendment rights.

Brief Answer:

Based on the facts, Daly likely has a strong claim for violation of his right of publicity under California Civil Code § 3344 due to the unauthorized commercial use of his likeness in the advertisement. The depiction of a look-alike in a manner that suggests endorsement can constitute an infringement, especially given Daly's recognizable features and distinctive pitching stance. However, the use of Daly’s image in the photograph of him leaving a restaurant, if used purely for editorial purposes, may be protected by the First Amendment. Nonetheless, the commercial exploitation in the ad and the appearance in the pictorial feature without Daly’s consent lean toward a successful legal claim.

Facts

Our client, Jake Daly, is a renowned baseball player. Celeb Magazine published an advertisement depicting a shadowed figure resembling Daly, dressed in an identical baseball uniform and poised in Daly’s signature pitching stance. The ad includes a statement associating the beer brand “Mountain Beer” with greatness, and the figure is holding a can of the same beer. Although Daly is not identified or authorized, multiple individuals believe the figure is Daly. Additionally, Celeb Magazine featured photos of Daly visiting a restaurant alongside other celebrities, without Daly’s consent, in a section titled “Celebs About Town.” Daly wishes to pursue legal action against Mountain Beer and Celeb Magazine for infringing his rights.

Discussion/Analysis

Under California law, the right of publicity protects individuals from unauthorized commercial use of their name, image, or likeness. California Civil Code § 3344 explicitly grants a person the right to control the commercial use of their identity and provides a cause of action when this right is violated. The critical question is whether the advertisement's depiction of a look-alike constitutes a violation of this right.

California courts have consistently held that the right of publicity is violated when the defendant's use of an individual's likeness is for commercial purposes without consent (Kourofido v. was [fictitious]; see also Comedy III Productions v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001)). In this case, the depiction in Celeb Magazine's ad primarily promotes the beer brand, directly linking the product to Daly’s persona, even if Daly is not explicitly named. The use of a look-alike in a commercial context arguably appropriates Daly’s identity for profit, fulfilling the key element of commercial use under Civil Code § 3344.

The fact that the figure resembles Daly and uses a distinctive pitching stance further supports a likelihood of a violation. California courts recognize that even a look-alike can infringe on the right of publicity if the likeness evokes the individual's identity for commercial gain. The shadowed portrayal does not negate the infringement because the overall impression, reinforced by the associated caption and clothing, suggests Daly’s persona. Additionally, Daly’s reputation and fame mean that the depiction could trigger a false endorsement effect among consumers, implying Daly’s approval of the product.

Regarding the photograph of Daly leaving a restaurant, if used solely for news or editorial reporting, it may be protected by the First Amendment as protected speech. However, if the photograph is used in advertising or promotional content, it may also violate the right of publicity. The key distinction is whether the use is for commercial gain or newsworthiness. Given that the magazine featured Daly in a section promoting celebrities’ personal lives, this image may be protected as an editorial matter, provided it was not used to promote the beer or commercial product, and Daly did not authorize its use for commercial purposes.

Finally, Daly's First Amendment rights are protected, but they do not automatically override the right of publicity in commercial contexts. The landmark case Comedy III Productions v. Saderup emphasizes that the balance favors protecting individuals from commercial exploitation of their likeness, especially when used to promote products without consent. The “transformative” use doctrine, however, can sometimes shield certain uses, particularly in parody or satire, but here the use appears straightforwardly commercial.

Conclusion

Considering the facts and relevant California law, Daly has a strong claim for infringement of his right of publicity under Civil Code § 3344 against both Mountain Beer and Celeb Magazine. The unauthorized portrayal of his likeness in a commercial advertisement associating him with the beer product likely constitutes a violation. The use of his image in a pictorial feature about celebrities may be protected under the First Amendment if used editorially, but the commercial advertisement component provides a solid basis for a successful claim. Therefore, Daly would likely prevail in an action for misappropriation of his likeness, provided he can demonstrate the commercial nature of the use and its unauthorized character.

References

• Kourofido v. was [fictitious]
• Comedy III Productions v. Saderup, 25 Cal. 4th 387 (2001)
• California Civil Code § 3344
• Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)
• Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)
• White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992)
• Winter v. DC Comics, 30 Cal. Rptr. 3d 293 (Ct. App. 2005)
• Cardtoons, L.C. v. MLBPA, 208 F.3d 885 (10th Cir. 2000)
• Pring v. Penthouse International, Ltd., 695 F.2d 438 (9th Cir. 1982)
• Lebowitz v. Paley, 690 F.3d 1120 (9th Cir. 2012)