LifePivo

The full story

When Smart-Glasses Video of You Is Used to Sell Something

Explained by Maya Chen — LifePivo fictional editorial host

The person filmed holds a right the wearer does not, under California's publicity law

Back to the summary

The remedy that belongs to the person in the frame, not the one wearing the glasses

Almost every question in this subject ends at the same wall: someone recorded a bystander, and the bystander has little to do about it. The copyright in the clip is the wearer's, not the person filmed. A request to a platform to take the video down usually has no legal hook behind it, because the notice-and-takedown machinery in US law runs on copyright, which the person in the shot does not hold.

There is one place where the direction reverses, and the person captured holds a right the wearer does not. It is the right of publicity, and it is narrow on purpose. It does not care that someone was filmed. It cares whether their identity was used to sell something.

What California Civil Code 3344 actually says

The operative sentence is worth reading in full. Subsection (a) provides that "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 that person's prior consent ... shall be liable for any damages sustained by the person or persons injured as a result thereof."

The remedy is unusually concrete for a privacy-adjacent statute. The violator is liable "in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered ... and any profits from the unauthorized use." The person bringing the claim need prove only "the gross revenue attributable to the unauthorized use," leaving the defendant to prove deductible expenses. "Punitive damages may also be awarded," and "the prevailing party ... shall also be entitled to attorney's fees and costs." The statute also lets a court order the material removed, and where it does, the respondent has "two business days" to comply.

Two words in that sentence carry most of the weight. "Knowingly" means an accidental or unwitting inclusion is not the target. And "for purposes of advertising or selling" is the whole boundary of the section, the thing that separates a recording used to move a product from a recording that merely exists.

"Photograph" already means video, and "readily identifiable" is the hinge

A reader might assume a statute from 1971 says nothing about a video shot on glasses. It does. Subsection (b) defines "photograph" as "any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable."

That last phrase is the practical gate. A person is "readily identifiable," the statute says, "when one who views the photograph with the naked eye can reasonably determine that the person depicted ... is the same person who is complaining of its unauthorized use." A face caught in the middle distance of a busy street clip may not clear that bar; a clear, recognisable subject does. The identifiability of the person, not the resolution of the camera, is what decides whether a smart-glasses frame is even capable of supporting a claim.

The line that decides everything: selling versus saying

Everything in this section turns on one distinction, and it is the distinction the statute and the courts spend the most effort protecting.

The statute draws its own line in subsection (d): a use "in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required." Report on a person, and the section does not reach you. Sell a product with their face, and it does.

The courts draw the same line from the First Amendment side. Zacchini is the anchor: the Supreme Court let Ohio's right of publicity stand against a broadcaster only where the broadcast appropriated the performer's entire act, its "economic value," rather than reporting on it. The California Supreme Court sharpened the test for images in Comedy III Productions v. Gary Saderup, over charcoal drawings of the Three Stooges sold on shirts. The court asked whether a work adds its own "new expression, meaning, or message," a "transformative" element, or whether it is instead a "literal depiction or imitation of a celebrity for commercial gain." Its holding was blunt: "depictions of celebrities amounting to little more than the appropriation of the celebrity's economic value are not protected expression under the First Amendment." Expression is protected; bare commercial appropriation is not.

Why an ordinary post, even a monetised one, usually falls outside it

The most common misreading is that any money changing hands trips the statute. It does not, and subsection (e) says so directly. The fact that a use "appears in a commercial medium" is not, on its own, a use that requires consent; consent is required only "if the claimed use occurs in connection with a news, public affairs, or sports program or with the commercial sponsorship or paid advertising" in the disqualifying way the subsection sets out. In plain terms, the statute reaches the person's identity being used to advertise or sell a specific product or service, not the general fact that a clip sits on a platform that runs ads.

That is why a wearer posting a street clip to a feed that earns advertising revenue is, ordinarily, on different ground from a wearer whose clip of an identifiable person is cut into an advertisement for goods. The first is a recording that happens to live in a commercial place. The second uses the face itself as the pitch. The statute is written around the second. None of this tells any individual whether a particular post is safe; it describes where the section is aimed.

The federal overlay: false endorsement

There is a second route that does not depend on any state's publicity statute, and it is federal. The Lanham Act, 15 U.S.C. 1125(a), reaches a use in commerce that "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association" of one person with another, "or as to the origin, sponsorship, or approval" of goods or services. Anyone "likely to be damaged" by that may sue.

Read onto captured footage, that is a false-endorsement theory: if an identifiable person's likeness is used so that viewers would think they back a product, the confusion, not the recording, is the wrong. It is a conditional route, turning on whether an ordinary viewer would read an endorsement into the use, and it sits alongside, not inside, the California statute.

It is California's statute, not the country's

The whole of the above is California law, and the geography matters. By the Cornell Legal Information Institute's account, "only about half the states have distinctly recognised a right of publicity," and many of the rest protect the same interest under a different name, inside privacy law or unfair competition, so both the protected list and the damages figure change at a state line. The $750 floor and the exact "name, voice, signature, photograph, or likeness" wording are California's, and are not a national rule.

How substantial the underlying interest is shows in a neighbouring section. Civil Code 3344.1 extends the right to a deceased personality and calls the result, expressly, a set of "property rights, freely transferable or descendible," lasting 70 years after death. That is the celebrity-estate end of the same idea, and it is a reminder that a right of publicity is treated as owned property, not merely as hurt feelings, in the state that wrote the most-cited version of it.

What this gives the person filmed, and what it does not

The lane is narrow, and its edges are the point. A claim needs an identifiable person and a use aimed at advertising or selling. It does not reach ordinary posting, it does not reach news or expression, and in roughly half the country it does not exist under this name at all.

Inside that lane, though, the usual direction of this subject flips. The person in the frame, not the wearer who owns the clip and controls the copyright, is the one holding the right, the statutory damages, and the attorney's fees. It is the single point in the whole cluster where being the subject of the recording is the stronger legal position.

Sources and verification