Right of Publicity

Elements

"Commercial use" includes the use of the name, voice, signature, photograph or likeness of a person on or in any product, merchandise or goods or for the purposes of advertising, selling or soliciting the purchase of any product, merchandise, goods or service.

NRS 597.810 Remedies for unauthorized commercial use; liability of owner or employee of medium used for advertising.

1. Any commercial use of the name, voice, signature, photograph or likeness of another by a person, firm or corporation without first having obtained written consent for the use is subject to:

(a) Injunctive relief to prevent or restrain the unauthorized use; and

(b) An action at law for any injuries sustained by reason of the unauthorized use. In such a suit, the plaintiff may recover:

(1) Actual damages, but not less than $750; and

(2) Exemplary or punitive damages, if the trier of fact finds that the defendant knowingly made use of the name, voice, signature, photograph or likeness of another person without the consent required by NRS 597.790.

2. No owner or employee of any medium used for advertising is liable pursuant to this section for any unauthorized commercial use of a person’s name, voice, signature, photograph or likeness unless it is established that the owner or employee had actual knowledge of the unauthorized use.

Example Cases

Proof

Damages

$750 minimum damages for entire tort, not for each third party that views the misappropriation

The Nevada statute has not limited the cause of action to celebrities, but the damages recoverable under NRS 597.810 are: "(1) Actual damages, but not less than $ 750; and (2) Exemplary or punitive damages, . . ." Sanchez argues that she needs the patient list because she is entitled to $ 750 for each of Hetter's patients who saw her picture. There is nothing in the statute or legislative history to suggest that this is a correct interpretation. It seems clear that what the legislature intended was to allow plaintiffs a minimum of $ 750 in damages even if no actual damages could be proven in order to discourage such appropriation. This statute provides a complete and exclusive remedy for the right of publicity tort. PETA, 110 Nev. at , P.2d at . Restitution is not available under this statute as Sanchez's damages would be limited to the commercial value of the use of her likeness, or what she could have received for sale of her before-and-after pictures. Thus, Hetter's patient information and tax return are irrelevant to the issue of compensatory damages in this action.

Hetter v. District Court, 110 Nev. 513, 519 (Nev. 1994)

Defenses

Misc

Gowen's tenth cause of action alleges that the Tiltware Defendants violated her right of publicity under NRS 597.810. NRS 597.810 prohibits "[a]ny commercial use of the name, voice, signature, photograph or likeness of another by a person, firm or corporation without first having obtained written consent for the use . . . ." NRS 597.810 (emphasis added). In her First Amended Complaint, however, Gowen admits that she authorized the Tiltware Defendants to use her likeness. (# 56 at P 74(c) ("Plaintiff permitted Defendants to use her likeness [*35] . . . ."). Based upon this admission, Gowen cannot plead a right of publicity claim because that claim requires that the Tiltware Defendants used her likeness without Gowen's consent. See American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) ("Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them.").

Gowen v. Tiltware LLC, Case No. 2:08-cv-01581-RCJ-RJJ, 2009 U.S. Dist. LEXIS 43970 (D. Nev. 2009)