When Smart-Glasses Video of You Is Used to Sell Something
The person filmed holds a right the wearer does not, under California's publicity law
Posting an ordinary smart-glasses clip of a stranger is not something the person in it can usually stop. One narrow exception runs the other way: if the footage is used to advertise or sell a product, California's right of publicity gives the person filmed, not the wearer, a claim with statutory damages. Commercial use is the trigger, not posting.
How it started
California wrote a right in a person's face and voice against commercial use in 1971
The right of publicity protects the commercial value of a person's identity. California Civil Code section 3344 makes it unlawful to "knowingly" use another's "name, voice, signature, photograph, or likeness" for "purposes of advertising or selling, or soliciting purchases" without that person's consent.
The US Supreme Court recognised the right in 1977, in Zacchini v. Scripps-Howard Broadcasting, the case of a "human cannonball" whose entire act was aired on the news. The Court held the First Amendment did not immunise broadcasting a performer's whole act without consent, and named the state interest as an economic one in the value of the performance.
What changed since
the protected "photograph" already covered video, and the camera moved onto every face
Section 3344 predates wearables, but its own text reaches them. It defines "photograph" to include a moving image, "any videotape or live television transmission, of any person, such that the person is readily identifiable," and it protects "any person," not only a celebrity.
Smart glasses put an identifiable bystander's likeness into a clip the wearer can keep, share, or occasionally use to promote something. Meta's Ray-Ban glasses shoot 1080p video and livestream to Facebook and Instagram from a frame that looks like ordinary eyewear, which is what makes the captured person's later appearance in a promotion the live question.
Where it stands now
the trigger is commercial use, and ordinary posting sits outside it
The claim turns on a single question: whether the likeness is used "for purposes of advertising or selling, or soliciting purchases." An advertisement, a promotion, a product listing is the lane. Subsection (d) exempts any use "in connection with any news, public affairs, or sports broadcast or account, or any political campaign," and the First Amendment protects expression, so reporting and ordinary posting are not covered.
Where the statute does bite, it carries damages of the greater of $750 or actual damages plus the profits from the use, and it allows punitive damages and attorney's fees. This runs the opposite way to who owns the clip, which is the wearer's: here the right belongs to the person captured. It is California's statute. Only about half of US states recognise a right of publicity at all.
What happens next
nothing is scheduled, and the commercial-versus-editorial line stays where the courts drew it
No statute or court ruling is on the calendar that would move this boundary. The line between commercial appropriation and protected expression is settled doctrine, anchored in Zacchini and, in California, the "transformative" test from Comedy III Productions v. Gary Saderup, and it is applied case by case rather than by any pending rule.
The one genuinely open question, which no court has scheduled to answer, is how that doctrine treats a hands-free capture taken without a deliberate shot. Nothing is filed to test it.
Sources and verification
- California Civil Code § 3344: the operative text — "knowingly uses another's name, voice, signature, photograph, or likeness ... for purposes of advertising or selling"; the "$750 or actual damages ... and any profits" remedy, punitive damages and attorney's fees; the (b) "readily identifiable" definition of "photograph" including "videotape or live television transmission"; the (d) news/public-affairs/sports/political exemption; the (e) commercial-medium provision.
- California Civil Code § 3344.1: the deceased personality's right, described as "property rights, freely transferable or descendible," lasting 70 years after death.
- Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977): the only US Supreme Court right-of-publicity case; the First Amendment does not immunise broadcasting a performer's entire act without consent, and the state interest is the economic value of the performance.
- Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001): the California Supreme Court's "transformative" test; "depictions of celebrities amounting to little more than the appropriation of the celebrity's economic value are not protected expression under the First Amendment."
- 15 U.S.C. § 1125(a) — Lanham Act false endorsement: civil liability for a use "likely to cause confusion ... as to ... sponsorship, or approval" of goods or services, actionable by any person "likely to be damaged."
- Ray-Ban Meta smart glasses — Meta announcement: Meta's own description of the 12 MP camera, 1080p video, five-microphone audio, and livestreaming to Facebook and Instagram from the frame.
- Right of publicity — Cornell Legal Information Institute (Wex): an encyclopedia entry, cited only for the general proposition that "only about half the states have distinctly recognised a right of publicity" and that others protect it under privacy or unfair-competition law.
- First Amendment, U.S. Constitution: the free-speech guarantee that the news, public-affairs and expression exemptions rest on.