The statutory right of publicity, is based on Civil Code section 3344, which provides in relevant part as follows: “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner … for purposes of advertising or selling … without such person’s prior consent, … shall be liable for any damages sustained by the person or persons injured as a result ….” (Civ. Code, § 3344, subd. (a).)
The common law right of publicity has four elements: (1) defendant’s use of plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97 [179 Cal.Rptr.3d 807]; Stewart v. Rolling Stone LLC, supra, 181 Cal.App.4th at p. 679.)
Both Civil Code section 3344 and the common law require that the defendant “use[]” the plaintiff’s identity. (See Montana v. San Jose Mercury News, Inc. (1995) 34 Cal.App.4th 790, 793 [40 Cal.Rptr.2d 639].)