In order to prevail in a lawsuit for an infringement on your right of publicity, you will have to prove certain elements that have been laid out by the legislature and/or the courts. Some states will have a statute laying out the cause of action, while other states may have judge-made law that lays out the cause of action. Check with your local laws to determine what you will have to prove. In California, for example, there is both a statutory and common law (i.e., judge made law) right of publicity.


Under California statutory law, you would have to prove that (1) there was a knowing use of your identity, (2) the use was for advertising purposes, and (3) there was a direct connection between the use and the commercial purpose.
Under California common law, you must prove that (1) the defendant used your identity, (2) your name was used to the defendant's advantage (commercial or otherwise, (3) there was no consent on your part, and (4) you were injured.
In California, you can simultaneously pursue both causes of action.;
, Someone violates your personality rights when they use your name or likeness for a commercial purpose.For example, someone could take a picture of you and use it in an advertising campaign. You can sue if the company does not get your permission.


Gather examples of your name or likeness appearing in any newspaper or magazine article. If your image was used in an online advertisement, then create screen captures or print them off.
Realize, however, that you can’t sue for all uses of your name or likeness. For example, if you are a celebrity or a politician, then someone can write a biography or newspaper article about you because it is newsworthy. Newsworthiness is always a defense, so you should be aware whether or not your likeness was used as part of a news story.
 Your image might have appeared in a television advertisement or other visual media. Try to record the video and preserve it. If it appears online, then download the video.
 Non all exploitation has to be for commercial benefit of the person using your name or likeness. So long as the person benefits in some way from appropriating your identity, you can sue.For example, a university professor created non-commercial websites and email accounts that contained the names of several former colleagues. He then sent emails to different universities under the pretense of nominating them for jobs. In his emails, he redirected people to his website which contained negative information about his former colleagues. A court held that this professor misappropriated the likenesses of his colleagues.
If you are unsure about whether you can sue over a particular use of your name or likeness, then gather all evidence and show it to a lawyer.
 An experience lawyer can tell you whether you have a valid case. The lawyer can also bring the lawsuit if you decide to hire them. At a minimum, you should schedule a half hour consultation with the lawyer to discuss your situation.


You can find a qualified lawyer by contacting your local or state bar association, which should run a referral program. You can find your nearest bar association by visiting the American Bar Association website and clicking on your state., You can technically sue for any violation of your personality rights. However, that doesn’t mean that you should. Lawsuits are long and expensive. If you don’t have a lawyer, you might save on legal fees but you will still spend a considerable amount of time appearing in court, gathering evidence, and learning the law. For this reason, you should discuss at the consultation whether bringing a lawsuit is worth your time.


Analyze whether you have a strong case. You should discuss with the lawyer whether the person who appropriated your likeness has any defenses. You shouldn’t sue if your case is weak.
Consider whether the person who appropriated your likeness has any resources to pay you.It’s one thing to win a lawsuit but quite another to try and collect on your money judgment. If the person who used your likeness is a small business, then you might not want to sue. However, if a large publishing company or media conglomerate appropriated your likeness, then you should sue.
Consider whether bringing a lawsuit will deter other people from appropriating your likeness. If you are a celebrity, for example, you might want to sue simply to warn other people not to appropriate your likeness. Bringing a couple of lawsuits—even if you lose money—could save you money in the long run.
 In a right of publicity case, you will be able to ask the court to award you actual damages, the defendant's profits, punitive damages, and attorneys' fees. Also, you may be able to ask the court to take into consideration the injury to your peace, happiness, feelings, goodwill, and professional standing.


Your actual damages is the amount of money you actually lost because the defendant used your personality. For example, if you lost out on other jobs because of this, you would be able to collect those lost earnings.
The defendant's profits is the amount of money the defendant made off of you because they used your likeness.
Punitive damages may be awarded when there has been oppression, fraud, or maliciousness. Punitive damages are meant to punish the defendant for their actions.
Some states, and possibly the federal government, might allow you to collect attorneys' fees if you are successful in your case. In California, for example, attorneys 'fees are required to be paid by the losing side., You have a couple options for where you bring your lawsuit. First, you will have to decide whether to sue in federal or state court. If your state doesn’t have a law prohibiting misappropriation of likeness, then you will have to sue in federal court.


You can bring right of publicity claims under the federal Lanham Act.If you sue in federal court, you can tack on any state law claims as well.You can certainly represent yourself in federal court though, as a general rule, it may be more complicated. Federal court is ideal when a lot of money is at stake and each side has a lawyer.
You should try to bring your case in federal court whenever possible. While some state courts may be well equipped to take these types of cases (i.e., California), most state courts will have trouble with these causes of actions. In addition, federal courts often have more robust discovery phases, which will be important when you need to learn the extent of your damages.
 You start the lawsuit by filing a complaint in court. This document identifies you as the “plaintiff” bringing the lawsuit and the person you are suing as the “defendant.” In the complaint, you explain how the defendant appropriated your name or likeness without your permission. You also make a claim for relief, which is usually money compensation (“damages”).If you have a lawyer, he or she should draft the complaint for you. If you don’t have a lawyer, then you should ask the court clerk if there is a printed “fill in the blank” complaint form you can use. Small claims courts in particular have these forms.
 After completing the complaint, you should make several copies. Take the original and the copies to the court clerk. Ask to file the original.


You will probably have to pay a filing fee, which varies by court. If you can’t afford the fee, then ask for a fee waiver form and fill it out.Have the clerk stamp your copies of the complaint with the filing date as well.
 The person you sue must have notice of the lawsuit. You can provide this notice by sending a copy of your complaint and a “summons,” which you can get from the clerk. The summons tells the defendant how much time he or she has to answer the lawsuit.


Your lawyer will arrange service. However, if you are representing yourself, then ask the clerk for what methods of service are appropriate.
Generally, you can serve notice by hiring a private process server to make delivery for a small fee (usually $45-75). In other courts, you can pay the sheriff to make service or have someone 18 or older make hand delivery, provided they are not a party to the lawsuit., Whoever makes service should fill out a “proof of service” or “affidavit of service” form.You can get it from the court clerk. By completing this form, the server testifies that he or she made service on the defendant.


The server typically returns the form to you after filling it out. You should make a copy and file the original with the clerk.
 The defendant will probably respond to your lawsuit by filing an “answer” with the court. In this document, the defendant responds to each allegation you made in the complaint. Typically, the defendant admits, denies, or claims insufficient knowledge to admit or deny each allegation.Read the answer closely. The answer should provide the first sneak peek as to what the defendant’s defense will be.
If you have a lawyer, then the complaint will be sent to your lawyer and not you. Nevertheless, you should request a copy of all documents filed in your case.
 After the defendant responds to your lawsuit, the case enters a fact-finding phase. This is called “discovery.” The purpose of discovery is for each side to request information from the other side so that you can understand what evidence will be presented at trial.As the plaintiff, you can also request documents that help strengthen your case.


For example, you might not know the full extent of the defendant’s appropriation of your likeness. You can submit a Request for Production for a copy of any use of your name or likeness. The defendant will then have to hand over copies to you. In this way, you could uncover that the defendant used your likeness in more advertisements than you were originally aware of.
 During discovery, each side can also ask witnesses questions in a “deposition.” Depositions take place in a lawyer’s office with a court reporter present.You might have to give a deposition, and you should certainly ask the defendant to sit for one.


For example, the defendant might claim that you consented to the use of your likeness, which is a defense. You can use the deposition to figure out what facts the defendant thinks constitute consent.
Any statement given in a deposition can be raised at trial, so your lawyer can use the deposition to “lock in” the defendant to a story. If the defendant starts to tell a different story at trial, your lawyer can raise the inconsistent statement the defendant made in the deposition. This is a good way to undermine the defendant’s credibility at trial.
 After the close of discovery, the defendant might try to win the lawsuit before going to trial. He or she can file a “motion for summary judgment.” These motions are appropriate only if no facts are in dispute and the law clearly favors the defendant.Your lawyer will probably defend against the summary judgment motion by arguing that meaningful facts do remain in dispute for a jury to decide. For example, you might have had a conversation with the defendant which the defendant claims represents your consent. However, you don’t think what you said can be interpreted as consent.
 Because of how long lawsuits can be, you might want to try and negotiate or mediate a settlement outside of court. You should discuss with your attorney whether settlement would be ideal. Consider the following factors:


The strength of your case. If you have a strong case, you might only settle if the defendant can pay you close to the amount you are suing for. By contrast, if your case is weak, you might want to settle for far less.
If the defendant will apologize. One benefit of settling a case is that you can craft your own remedies. For example, you might want the defendant to issue a public apology. A court can’t order a defendant to apologize, but you could negotiate an agreement where he or she does. Talk with your lawyer about whether there are unconventional remedies you want to pursue during settlement.
 As you prepare for trial, you should fully understand what you need to prove. Understanding the different elements of your claim will help you decide what evidence to present at trial. To win your case, you will need to prove:The defendant used a protected attribute. This could be your name, likeness, voice, etc. You can prove this element by introducing examples of the advertisement or use.
The defendant used your attribute for an “exploitative” purpose. In other words, the defendant tried to get some benefit from using your likeness. If the defendant used your image for commercial benefit (such as in an advertisement), then this element is easily proved.
You did not consent. Consent is also a defense. You will need to testify at trial that you didn’t consent to the specific use of your likeness.
 If you have a lawyer, then he or she will gather all of your evidence in preparation for trial. If you are representing yourself, then you should do the following to prepare:


Draft your list of witnesses. You might have people testify on your behalf. You usually have to give the defendant your list of witnesses before trial. You should ask someone to testify on your behalf only if that person has personal knowledge of the facts they are testifying to.For example, if someone found an advertisement that used your picture, then you should have that person testify that they saw the image, recognized you, and sent you the advertisement.


Create exhibits. Any document you want to use at trial needs to be turned into an exhibit. You should get exhibit stickers from the court clerk or an office supply store. Affix the sticker to a corner of the document.If you are introducing a picture into evidence, put the sticker on the back of the picture.
Make copies of the exhibits. You have to give the defense and the court a copy of the exhibit. You also will need to show the witness a copy of the exhibit on the witness stand. Accordingly, you should make at least four copies of everything.
 You will probably be nervous, especially if you have never participated in a trial before. To prepare, you should find a trial at the courthouse where you will be appearing. Ask the court clerk if there is any you can observe. Courtrooms are generally open to the public., Either you or the defendant can request a jury trial. If you want a jury, then request it in your complaint. If you are in small claims court, then you might not be able to have a jury (though it depends on the court). Jury selection is called “voir dire.”During “voir dire,” the judge will call up a panel of potential jurors and ask them basic questions (about their jobs, hobbies, etc.) If you think a juror cannot be unbiased, then you should ask the judge to dismiss the juror “for cause.”
You will also have a certain number of “peremptory” challenges. With these, you can excuse the juror without having to give the judge a reason. The only limitation on using peremptory challenges is that you can’t discriminate on the basis of race, gender, or ethnicity., If you have a lawyer, he or she will handle the whole trial. You will only testify. However, if you are representing yourself, then you might need to make an opening statement. Try to keep it brief. The purpose of the opening statement is to give the judge and jury a roadmap of the evidence you will present., You can call your witnesses first. If you have to ask them questions, then make sure not to ask leading questions. A leading question contains its own answer and can typically be answered with a “yes” or “no.”For example, “You saw my name and face in a used car ad, didn’t you?” is a leading question. Instead, ask a series of general questions to elicit the same information:

“Do you read any newspapers?”
“Which ones?”
“And how often do you read it?”
“Did you read it April 2, 2015?”
“What did you see?”



, The defendant gets to go second to present witnesses and introduce documents or other exhibits. You will have a chance to cross-examine the witnesses.


If you are representing yourself at trial, then read Question Witnesses when Representing Yourself for tips.
 After all evidence has been submitted, you will be able to make a closing argument. The purpose of the argument is to draw together all of the evidence and show how it supports your case.


Be sure to remind the jury of any exhibits you used. For example, if you have a full-page commercial advertisement with your face plastered on it, then be sure to hold it up to the jury during your closing argument.
 The judge will read the jury its instructions and then allow them to retire for deliberations. If you are in small claims court, then the judge might just deliver the verdict from the bench after all evidence has been submitted.


In many state courts, the jury no longer needs to be unanimous. However, a jury must still be unanimous in federal court., If you lose, you might want to appeal. You should talk this over with your lawyer. An appeal can be time-consuming; many take a year or longer to resolve.


However, if the judge made an obvious mistake, then you could appeal and get a new trial. Depending on the amount of money at stake, you might want another shot to win at trial.
If you brought a small claims case, then you might not be able to appeal. Talk this over with an attorney to check.
To start the appeals process, file a Notice of Appeal with the trial court. You generally do not have much time to file. Depending on your state, you get 30 days or less from the date final judgment is entered., Even if you win at trial, you face the problem of collecting on the judgment. A court judgment is just a slip of paper—the court doesn’t send police out to collect the money for you. You will need to be proactive.


Ideally, the defendant will just pay up. If not, you could file a garnishment action to garnish the defendant’s wages. You might also be able to put a lien on the defendant’s property.For more information, see Collect a Court Ordered Judgment.
Know the elements you need to prove to win a right of publicity/personality case.
Collect examples of print advertisements.
Record video uses of your likeness.
Find other uses of your name or likeness.
Meet with a lawyer.
Analyze whether bringing a lawsuit is worthwhile.
Analyze possible damages.
Sue in the right court.
Draft a complaint.
File the complaint.
Send the defendant a copy of the complaint.
File your proof of service with the court.
Read the defendant’s answer.
Request documents from the defendant.
Ask the defendant to sit for a deposition.
Defend against a motion for summary judgment.
Consider settling outside of court.
Identify what you have to prove at trial.
Get your evidence in order.
Observe a trial if you are representing yourself.
Select a jury.
Make an opening statement.
Present your evidence.
Cross-examine the defense witnesses.
Make a closing argument.
Wait for the verdict.
Consider whether to appeal.
Collect your judgment.
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