trends

Understanding Talent Name and Likeness Rights

Many content producers, webmasters and others in the adult entertainment business have at least a basic understanding of the intellectual property rights associated with copyrights and trademarks. Far fewer, however, have the same amount of familiarity with another important form of intellectual property known as "rights of publicity", frequently referred to as "name and likeness rights". Understanding these rights has become particularly important for adult entrepreneurs as they are rights that are increasingly being asserted by talent.

Rights of publicity are rights that a person has to the use of their name, likeness, voice and persona on or in association with products or services as well as in association with their marketing or promotion. These rights are protected primarily at the state level by many, but not all, states.

For example, California Civil Code Section 3344 prohibits the misappropriation of a person's rights of publicity stating:

"Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. "

The California statute, which is generally similar those enacted by other states, allows a party whose rights of publicity have been misappropriated to collect actual damages and the wrongdoer's profits associated with the wrongful use of the party's name or likeness. In addition, California's law also provides for a minimum damage award of $750 regardless of amount of actual damages actually sustained. Unlike the rights of publicity laws enacted by many other states, however, California's law authorizes a party to seek punitive damages for the misappropriation of their name or likeness. This is important because there is no statutory limitation regarding the size of a punitive damage award. And since the function of a punitive damages award is to punish the wrongdoer and deter similar conduct, it is possible that a single punitive damages award for misappropriation could financially crush a typical adult entertainment business.

So, adult entertainment businesses are well-advised that they should take appropriate precautions to avoid becoming exposed to the very serious and costly liability for misappropriation that could result if they, their affiliates or content providers use a person's name, likeness, voice or persona without explicit permission to promote a product or service; especially since claims of misappropriation of name or likeness occur more often in the adult industry than one might think. In fact, over the years our firm alone has handled dozens of cases that have involved a party's rights of publicity to some degree or another.

To help you recognize situations where a right of publicity problem could occur, here are some of the most common scenarios we've encountered where the issue of misappropriation of name or likeness arises in an adult entertainment context:

  • Situations where a party uses a model's or performer's name or likeness without permission in banner advertising or pop-ups promoting the sale of website memberships, the purchase of live cam shows, video-on-demand, etc.
  • Creation of a website by a party that uses an adult performer's name and likeness without permission on the splash page and/or other parts of a website falsely describing the site as the performer's website or the performer's "official" site.
  • Use of a photograph depicting a performer to promote a website by an affiliate marketing program or an affiliate marketer where the program or affiliate either has no right to use the photograph in the first place, or the party lacks the additional requisite rights to use the likeness of the performer to promote the website.
  • Use of a photograph of a person without their permission in an advertisement for an adult dating site where the advertisement falsely claims that the depicted person is a member of the dating site.
  • Use of a performer's or other person's name in a domain name without the person's permission in order to attract online traffic that is, in turn, used to promote or sell goods or services.
  • Non-authorized use of a performer's likeness in a photograph is reproduced in physical advertisements, such as billboards. This form of misappropriation has occurred several times in relation to billboard advertising for gentleman's clubs.
  • Use of an adult entertainment performer's photograph in an escort service advertisement without the performer's permission.
  • Association of a depiction of a performer with an adult toy product where such association falsely implies sponsorship of, or some other affiliation with, the toy or its manufacturer.
  • Marketing products such sex toys falsely claiming to be reproductions of a performer's genitalia, for example, where packaging falsely claims the adult toy to be a vaginal replica of an adult film star's vagina.
  • Marketing products comprising reproductions of a performer's genitalia or other parts, such as a penis dildo produced from a mold of a famous adult film star's penis, after the rights to do so have terminated.
  • Depiction of performers in a false light while implying sponsorship, such as when an image depicting a nude female model is digitally altered to add a penis to make the model appear to be a transsexual for the purpose of advertising in a 900-line audiotext transsexual chat service.

Allegations of misappropriation of a person's name are also frequently additional claims in litigation principally regarding infringement of other intellectual property rights.

For example, it is common to see a misappropriation of name rights claim in an anticybersquatting lawsuit where there is an allegation of misappropriation of name rights regarding the name that appears in the disputed domain name. Also, rights of publicity claims are common in copyright infringement cases against a party that uses infringing materials to promote his or her website, web cam business, dating site, etc.

The easiest and simplest way to avoid costly litigation, and potentially crushing liability, is to get the necessary quantum of rights to use a persons name and likeness for all the purposes the content containing the person's name and/or likeness will be used.

This can be done at the time the content is created, by an appropriately drafted rights acquisition agreement and release form, or the rights can be acquired subsequently by a separate agreement.

What is certain, however, is the fact that the rights to use a person's name and likeness should be acquired in writing via a clearly written agreement.

Beyond the acquisition of rights described above, I have also found it helpful for my clients to acquire, by written agreement, a promise by models and performers not to sue my client should my client use content created by the model or performer for my client on or in association with any goods or services.

Additionally, I have also found it very useful in litigation on behalf of content-owning clients to acquire from the models and performers the rights to sue a party who misappropriates the rights of publicity of the person(s) depicted in the content.

This has often proven to be helpful in resolving copyright disputes favorably for my clients because, as I have previously indicated, a copyright infringer often also engages in the misappropriation of rights of models and performers by using the infringed materials depicting the models and performers to promote a website or other products or services.

Gregory A. Piccionelli is an intellectual property and adult entertainment attorney experienced in Internet matters and Federal Trade Commission matters. He can be reached at Piccionelli & Sarno at (805) 497-5886 or greg@piccionellisarno.com. This article is not intended to be, nor should be considered to be, legal advice. As usual, I strongly urge you to seek the counsel of a qualified and experienced adult entertainment attorney familiar with the types of legal issues discussed in this article.

Related:  

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More Articles

opinion

The SCREEN Test: How to Prepare for Federal Age Verification

For those who are counting, there are now 20 enacted state laws in the United States requiring age verification for viewing online adult content, plus numerous proposed laws in the works. This ongoing barrage has been exhausting for many in the adult industry — and it may be about to escalate in the form of a potential new AV law, this time at the federal level.

Corey D. Silverstein ·
opinion

How to Master Team Dynamics for Business Success

Having the right team in place is everything. Whether getting a startup off the ground and thriving, or safeguarding an established company, the right — or wrong — people can mean the difference between a successful venture and a failed dream.

Juicy Jay ·
opinion

Eight Steps to Fast-Track AI Site Approval for Processing

Artificial intelligence is a hot topic these days. AI technology is speeding up the way we do business across all industries and offers numerous benefits, from automating processes to increasing efficiency and scalability.

Cathy Beardsley ·
opinion

How to Secure High-Risk Transactions With Network Tokenization

Ensuring the security of data as it moves through digital channels is the foundation of safe transactions, and crucial for your success. If your business can’t secure transactions, you’re exposed to myriad processing traumas.

Jonathan Corona ·
profile

Lea Lexis On Challenging the Porn Status Quo

Lea Lexis doesn’t just aim to make movies — she wants to craft experiences. Bending the rules of what’s possible in moviemaking with the precision of a true auteur, the performer-turned-Brazzers producer has helped shape some of the industry’s most striking and boundary-pushing productions.

Jackie Backman ·
profile

WIA Profile: Reba Rocket

As chief operating officer and chief marketing officer of Takedown Piracy, long at the forefront of intellectual property protection in adult entertainment, Rocket is dedicated to safeguarding the livelihoods of content creators and producers while fostering a more ethical and sustainable industry.

Women In Adult ·
opinion

Protecting Content Ownership Rights When Using AI

In today’s digital age, content producers have more tools at their disposal than ever before. Among these tools, artificial intelligence (AI) content generation has emerged as a game changer, enabling creators to produce high-quality content quickly and efficiently.

Corey D. Silverstein ·
opinion

How Payment Orchestration Can Help Your Business

An emerging payment solution is making waves in the merchant world: the payment orchestration platform (POP). It’s quickly gaining traction as a powerful tool for managing online payments — but questions abound.

Cathy Beardsley ·
opinion

Fine-Tuning Refund and Cancellation Policies

For adult websites, managing refunds and cancellations isn’t just about customer service. It’s a crucial factor in maintaining compliance with the regulations of payment processors and payment networks such as Visa and Mastercard.

Jonathan Corona ·
profile

WIA Profile: Laurel Bencomo

Born in Cambridge, England but raised in Spain, Laurel Bencomo initially chose to study business at the University of Barcelona simply because it felt familiar — both of her parents are entrepreneurs. She went on to earn a master’s degree in sales and marketing management at the EADA Business School, while working in events for a group of restaurants in Barcelona.

Women In Adult ·
Show More