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Timed Out, LLC v. Youabian, Inc.

California Court of Appeals, Second District, Third Division

September 12, 2014

TIMED OUT, LLC, Plaintiff and Appellant,
v.
YOUABIAN, INC., et al., Defendants and Respondents.

APPEAL from judgment of the Superior Court of Los Angeles County, No. SC114914 Norman P. Tarle, Judge.

Page 1002

[Copyrighted Material Omitted]

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COUNSEL

Law Offices of Hall & Lim, Timothy A. Hall, Ani Aghajani; Conkle Kremer & Engel and Eric S. Engel for Plaintiff and Appellant.

Bonne, Bridge, Mueller, O’Keefe & Nichols, Raymond J. McMahon and Kevin J. Grochow for Defendants and Respondents.

Page 1004

OPINION

KITCHING, J.

INTRODUCTION

Plaintiff Timed Out, LLC (Plaintiff), as the assignee of two models who are not parties to this action (the Models), sued defendants Youabian, Inc. and Kambiz Youabian (Defendants) for common law and statutory misappropriation of likeness based on Defendants’ alleged unauthorized display of the Models’ images in connection with advertising Defendants’ cosmetic medical services. The trial court ruled a cause of action for misappropriation of likeness is not assignable and granted Defendants’ motion for judgment on the pleadings on that basis. We conclude a misappropriation of likeness claim, which concerns only the pecuniary benefits to be derived from the commercial exploitation of a person’s likeness, is assignable. Accordingly, we reverse.

FACTS[1] AND PROCEDURAL BACKGROUND

According to the complaint’s allegations, Plaintiff is a company that “specialize[s] in the protection of personal image rights.” The Models are professional models, who earn a living modeling and selling their images to companies for advertising products and services. In or about July 2011, the Models discovered Defendants had been using their images on Defendants’ website, without the Models’ consent, to advertise Defendants’ cosmetic medical services. Following the discovery, the Models “assigned their rights to bring suit for misappropriation of their images to PLAINTIFF.”

Based on the foregoing allegations, Plaintiff sued Defendants for statutory and common law misappropriation of likeness. The complaint alleges that, as a direct and proximate result of the misappropriation, Plaintiff, through its assignment from the Models, suffered damages “with respect to [the Models’] right to control the commercial exploitation of their image and likeness [sic]” and through the dilution of the value of the Models’ images for advertising medical services.

Defendants moved for judgment on the pleadings. In their motion, Defendants principally asserted that Plaintiff lacked standing to sue on behalf of the Models because the right of publicity, which creates liability for misappropriation of a person’s name or likeness, is personal in nature and cannot be

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assigned. Defendants also argued Plaintiff’s claims were preempted by the federal Copyright Act of 1976 (Pub.L. No. 94-553 (Oct. 19, 1976) 90 Stat. 2541).

After hearing argument and taking the matter under submission, the trial court granted Defendant’s motion. In its written ruling, the court observed the parties’ primary dispute centered on whether a claim for misappropriation of likeness can be assigned. The court framed the issue as follows: “The parties agree that, under California law, assignment of a ‘personal’ tort is not valid.... The issue, therefore, is whether a cause of action for misappropriation of publicity is personal in nature.” Citing Lugosi v. Universal Pictures (1979) 25 Cal.3d 813 [160 Cal.Rptr. 323, 603 P.2d 425] (Lugosi), the trial court concluded ...


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