Marketing and Merchandising

Guide to the Laws related to Marketing and Merchandising in California

Many areas of law may apply when marketing, advertising, or selling goods or services of any kind. In particular, before a business wants to use someone else’s name, image, voice, or other likeness, they need to be aware of at least two areas of law: right of publicity, and trademark. Also, marketing certain products to children is either banned entirely or heavily restricted.

Here are the California state laws. Federal/national laws also apply, which you can find here.

1. Right of Publicity

The right of publicity is generally a restriction on making money off the “likeness” of a person without their consent.1Civ Code 3344 This is also called “right against appropriation” or “right against commercialization.”

“Likeness” can mean image, voice, name, signature, or anything else that would identify a particular person. Even an imitation or simulation of such likeness can be considered a likeness.2Midler v Ford Motor Co. 849 F 2d 460 (9th Cir. 1988)

One exception to the right of publicity is if the use of a likeness is “newsworthy” or in the public interest.3See Dora v Frontline Video, Inc. (1993) 15 CA4th 536, interpreting Civ Code 3344(d) which exempts use “in connection with any news, public affairs, or sports broadcast or account”

Everyone, not just celebrities, has a right of publicity (although celebrities generally can obtain more money compensation if they pursue legal action).

California provides a right of publicity for 70 years after someone’s death.

To get the rights to a person’s likeness, you will need the person to sign a “release” or “license” of their publicity rights.

2. Marketing & Trademark

The other major consideration for marketing or merchandising is not to infringe on another’s trademark rights. Trademark infringement can occur with actual use of another’s trademarked name or logo (or other mark) to sell your product. But it can also be considered infringement if you even have an association or implied association or affiliation with a trademarked brand. For example, if you are in the fashion industry and you sponsor a certain brand that does not have rights related to fashion.

See more at our Guide to Trademark Law.

3. Marketing to Children

Many products are regulated as to whether they can be marketed to children or not. This includes tobacco, alcohol, and marijuana, to name a few.

4. Online marketing

As much marketing and advertising is done online now, you will need to know about the general internet laws.

5. False advertising

There is a general restriction on “false advertising.” See our Guide to Consumer Laws for more.

6. Endorsements

If you get paid to endorse a product or even get free stuff in exchange for endorsing it, you must disclose this fact in your marketing or announcement, such as a social media post. In general you must say something like “paid endorsement” or “sponsored endorsement.”4FTC.gov

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