How to Defend Yourself in a Personality Right Lawsuit

You can be sued for violating someone’s personality rights if you use their name or likeness without their consent, usually for commercial purposes. You will know you are being sued when you receive a copy of the complaint that the person filed in court. To defend yourself, you should meet with a qualified attorney who can listen to you describe the dispute and offer suggestions for building a defense. You are encouraged to hire the attorney to represent you.

Part 1

Part 1 of 4:

Building Your Defense

1
Read the complaint. You will get notified of the lawsuit when the person suing you (the “plaintiff”) serves you with a copy of the complaint. This document will explain how you violated the plaintiff’s personality rights. You should read the document closely to see what the plaintiff has alleged.
- The complaint also makes a request for a remedy from the court. The remedy could be money compensation or it could be a legal command (an “injunction”) to stop using the plaintiff’s name or likeness.^{[1]XResearch source}
2
Read the summons. This document should be served along with the complaint. It tells you how much time you have to respond to the lawsuit.^{[2]XResearch source} Make note of the deadline and commit to responding in time.
- If you don’t respond in time, then the plaintiff could get a “default judgment.” With this judgment, the plaintiff can possibly garnish your wages or put liens on your property. In effect, you lose without getting a chance to defend yourself.
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3
Get proof of any consent. Consent is a complete defense to a claim that you appropriated someone’s likeness.^{[3]XResearch source} Consent can be written or oral. Hopefully, you have written express consent in the form of a signed release. Go through your papers and look for any writing that might qualify as consent to use someone’s name or likeness.
- If you were given oral consent, then write down your memories of the conversation with the plaintiff. Identify any witnesses who might have heard the plaintiff give consent and get witness statements from them as well.
4
Analyze your defenses. Your best defenses will depend on the circumstances of the case. However, there are common defenses that you can typically raise in this type of lawsuit. In addition to consent, you could argue the following:^{[4]XResearch source}
- You were reporting on a newsworthy event. You have a First Amendment right to report or comment on any issue of public interest. This is a very broad right. It applies to traditional print as well as online reporting or commentary. The only real limitation is that the name or likeness must be related in some way to your commentary or reporting. For example, you cannot put Tina Fey’s picture on the cover of a book about dentistry.
- You transformed the name or likeness in a creative work. For example, if you created a collage and used the photograph of a celebrity in the art work, you might be able to claim that you have transformed the image.
- The plaintiff waited too long to sue. Each state has a “statute of limitations” period, which is the maximum amount of time a person can wait to sue you. The length varies by state, but is often between one and six years. If the plaintiff waited too long, you can get the case dismissed.
5
Meet with an attorney. To understand how to build your strongest defense, you should schedule a meeting with an attorney. A qualified attorney can tell you what evidence you will need to properly defend against this kind of lawsuit.
- You can get referrals in several ways. For example, you can ask another attorney for a recommendation. You might have used an attorney to buy real estate or to draft a will. Ask this person whether they could recommend an attorney who you can meet with to discuss this lawsuit.
- You can also contact your local or state bar association, which should run a referral program.^{[5]XResearch source}^{[6]XResearch source}^{[7]XResearch source}
- Once you have the name of an attorney, you should call and schedule a consultation. Take your copy of the complaint and summons, as well as other helpful documents. Show them to the attorney.
6
Think about hiring the attorney. He or she can handle all aspects of the lawsuit, from drafting your response to the complaint, to doing everything at trial. Ask the attorney about his or her fees. Also get an estimate for how much the entire defense would cost you.
- If you can’t afford to hire the attorney to do everything, then ask if he or she offers “limited scope representation.” Under this arrangement, the attorney only does the work you give them. For example, you could have the attorney coach you throughout the lawsuit or draft specific court documents. You would then handle the rest of the defense yourself.^{[8]XResearch source}
- Most states allow attorneys to offer limited scope representation. Ask at the consultation if this is an option.
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Part 2

Part 2 of 4:

Responding to the Lawsuit

You respond to the complaint by filing an “answer.” If you have a lawyer, then he or she will draft the answer for you. If you don’t have a lawyer, then you need to draft your own. Often, courts will have printed answer forms. You fill in the requested information and then file the answer.^{[9]XResearch source} Ask the court clerk if there is a form available.
2
Complete the answer form. In the answer, respond to each allegation made by the plaintiff. You can admit, deny, or claim insufficient knowledge.^{[10]XResearch source} If part of an allegation is true, then state which part is true and which part you deny.
- You can also raise any affirmative defenses in your answer. For example, you can claim the plaintiff violated the statute of limitations.
3
File the answer. Make several copies. Take the original and the copies to the court clerk and ask to the file the original.^{[11]XResearch source} The clerk should stamp your copies with the filing date.
- You may have to pay a fee to file your answer. Call the clerk ahead of time to ask about the amount and acceptable methods of payment.
4
Send the plaintiff a copy of your answer. Once you have filed the original, you need to send the plaintiff a copy of your answer. You can generally make service in the following ways:
- You can hire a private process server to make hand delivery on the plaintiff. The plaintiff’s address should be listed on the complaint. If the plaintiff has a lawyer, then make delivery on the lawyer.^{[12]XResearch source}
- Typically, you can have someone 18 or older hand deliver the answer if this person is not a party to the lawsuit.
- In some courts, you can also mail a copy of the complaint. Ask your court clerk for acceptable methods of service.
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Part 3

Part 3 of 4:

Preparing for Trial

1
Request helpful information from the plaintiff. After you file your answer, both you and the plaintiff can request helpful information in “discovery.” This is the fact-finding part of the lawsuit, and it can last a long time. You can request helpful information using different discovery techniques:
- Request copies of relevant documents. For example, you can request that the plaintiff turn over any evidence that they have suffered financially because of your appropriation of their name or likeness.
- Serve “interrogatories” on the plaintiff. These are written questions the plaintiff must answer under oath. You can use interrogatories to get basic information, such as the names of anyone who has information about the lawsuit.
2
Have the plaintiff sit for a deposition. A deposition is another helpful discovery technique. The plaintiff will answer questions face-to-face in a lawyer’s office, with a court reporter recording the questions and answers.^{[13]XResearch source} You definitely want to ask the plaintiff questions in a deposition.
- In particular, you should try to get the plaintiff to admit to consenting to the use of his or her name or likeness. At trial, you can ask the plaintiff about any questions he or she made in a deposition.
3
File a motion for summary judgment. You can win the lawsuit without going to trial if you file and win a motion for summary judgment. With this motion, you argue that there are no meaningful (“material”) facts in dispute for a jury to decide. Because no facts are in dispute, the judge should decide the case in your favor based on the law.^{[14]XResearch source}
- You could have a very strong argument. For example, you might have used the plaintiff’s picture to illustrate a magazine story. The story could be about waitresses and the plaintiff is a waitress. In this situation, the judge might feel comfortable granting you summary judgment.
- In other situations, the judge might deny the motion. For example, you might argue that the plaintiff gave oral consent to your use of her likeness. The plaintiff denies she gave oral consent. This is the kind of disputed material fact that a jury will have to decide after listening to trial testimony.
4
Think about settling. You can also avoid a trial by settling the dispute outside of court. For example, you could negotiate a settlement or participate in mediation. Both are voluntary. If you come to an agreement, you can pay the plaintiff some money, and the plaintiff will agree to withdraw the lawsuit.
- Talk to your lawyer about whether you should settle. You will probably have to pay money, so you might not want to settle if you think you have a very strong defense at trial. However, you also need to consider the benefit of making the lawsuit go away quickly, which a settlement can accomplish.
- Mediation is a good option if you don’t have a lawyer. With mediation, you and the plaintiff meet with a third person, the mediator, who listens to each side describe the dispute. Mediation will cost between $70-400 an hour, which you can split evenly with the plaintiff.^{[15]XResearch source}
5
Organize your evidence for trial. If you hired a lawyer, then he or she can get everything pulled together as your trial date approaches. However, if you are representing yourself, then you will need to get organized.
- Create a list of witnesses. The judge will give you a deadline for giving a list of your witnesses to the plaintiff. You should identify people who have helpful information. Remember that a witness can only testify as to what he or she personally knows.^{[16]XResearch source} For example, you could call as a witness someone who overheard the plaintiff give you oral consent. However, a witness can’t testify to gossip.
- Serve subpoenas on your witnesses. A subpoena is a legal command for the witness to show up at court on a certain day and time to testify.^{[17]XResearch source} You should serve all of your witnesses with subpoenas. Ask the court clerk where you can get a blank subpoena form and how you can serve the subpoena on your witnesses.
- Make exhibits. Any document you want to introduce at trial has to be an exhibit. You can create an exhibit by attaching an exhibit sticker to the document. Put the sticker either in the corner or on the back. You can get exhibit stickers from an office supply store or from the court clerk.^{[18]XResearch source} You will need to make several copies of your exhibits for trial.
6
Observe a trial. To get familiar with court procedure, you should also sit in on a trial. Courtrooms are usually open to the public. You can ask the court clerk if there are any trials that you can watch.
- Pay attention to where people sit and where they stand when they talk to the judge or to witnesses.
- Also take a notepad and write down the questions that lawyers ask witnesses. If you are representing yourself at trial, then you will need to ask witnesses questions. You want to appear as professional as possible.
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Part 4

Part 4 of 4:

Defending Yourself at Trial

You don’t want to be late to your trial, so give yourself plenty of time to get to the courthouse and go through security. Make sure to turn off your cell phones and other electronic devices before entering court. Some courts might not even let you bring them inside.^{[19]XResearch source}
2
Pick a jury. You will have to pick a jury first (if either you or the plaintiff requested a jury). This process is called “voir dire.”^{[20]XResearch source} It may differ slightly depending on the court, but the process is generally the same.
- A group of potential jurors will be sent to the court room. The judge will then ask them basic questions, such as whether they know you or the plaintiff, if they can be fair, their jobs, etc.
- A potential juror will be seated on the jury unless you or the plaintiff request their removal. If you think the potential juror can’t be fair, then ask the judge to excuse the juror “for cause.”
- You also will get a limited number of “peremptory challenges.” You can use these challenges to remove a juror without getting the judge’s permission. You can use a peremptory challenge for any reason other than discriminating on the basis of sex, race, or ethnicity.^{[21]XResearch source}
- If a potential juror is not removed for cause or with a peremptory challenge, then he or she will be seated on the jury.
3
Make an opening statement. The trial starts with opening statements, and the plaintiff goes first. Your goal with the opening statement should be to give the jury a sneak peek of what the evidence will be.
- Make your opening statement as short as possible. You don’t want to bore the jury.
- Mention what witnesses will testify and what they will testify to.
- Now is not the time to argue that the evidence shows you should win the lawsuit. Instead, be objective and stick to facts. Say, “As the evidence will show…” and then briefly explain what the witness will testify to.^{[22]XTrustworthy SourceUnited States CourtsOfficial website for the U.S. court systemGo to source}
4
Cross-examine the plaintiff’s witnesses. The plaintiff will present witnesses first. Their case will vary depending on the circumstances, but you should expect them to present examples of your appropriation of their name or likeness. The plaintiff should also testify that they did not give you consent to appropriate their identity.
- You get to cross-examine all plaintiff witnesses, including the plaintiff. See Question Witnesses when Representing Yourself for tips.
5
Testify on your own behalf. You will probably have to testify as well. You should prepare with your lawyer, who will ask you questions. If you don’t have a lawyer, then the judge will decide how you can present your testimony. For example, the judge might let you give a speech or ask yourself questions and then answer them.
- Be sure to speak clearly so that the jury can hear you. When a lawyer asks a question, look at the lawyer, but remember to make eye contact with jurors when you answer.
- Always stay calm when you are cross-examined. You will lose credibility if you get rattled.
- Remember to answer questions using whole words, not gestures or sounds like “uh huh” or “hmmmm….”^{[23]XResearch source}
- Ask the lawyer to repeat or rephrase a question if you didn’t understand it.
Your purpose is to tie all of the evidence together and show the jury how it favors your interpretation.^{[24]XTrustworthy SourceUnited States CourtsOfficial website for the U.S. court systemGo to source} The plaintiff has the burden of proving that it is more likely than not that you used their identity without permission. Be sure to poke as many holes in the plaintiff’s case as possible.
7
Await the verdict. The judge will read the jury its instructions after closing arguments have been made. The jury then retires to deliberate. If you have no jury, then the judge should give the verdict from the bench.
- In many state courts, verdicts no longer need to be unanimous.^{[25]XResearch source} Instead, the plaintiff could win if nine or 10 out of 12 jurors decide against you.
8
Think about appealing, if you lose. An appeal is a request that a higher court review the trial proceedings. The appellate court will typically have three judges. You point out errors the judge made or that there was no evidence to support the jury’s verdict. If you win the appeal, then the appellate court may order a new trial.
- Talk with your lawyer about whether an appeal would be worthwhile. They can take up to a year to resolve. Also, if you win the appeal, then you might have to go through the trial process a second time. You might find it easier just to pay the plaintiff rather than go through another trial.
- You start the appeal process by filing a Notice of Appeal with the trial court. You don’t have much time—typically 30 days or less.
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