Many Right of Publicity statutes provide for “statutory damages” in the event of violation of the statute. Typically, these statutory damages are available in lieu of actual damages, for those situations where actual damages may not be capable of being measured or demonstrated. In Indiana, under 32-36-1-10 (1)(a), the statutory damages amount is $1,000, or actual damages, whichever is greater (and separately, treble or punitive damages, as well as attorney’s fees and expenses, under 32-36-1-12(1) of the Indiana Code). It is important to be aware that statutory damages do not provide a reliable means for measuring what an otherwise valid Right of Publicity claim may be worth. Rather, statutory damages exist to establish a floor that an infringer must pay for violating any person’s Right of Publicity, regardless of the extent of the infringement or whose publicity rights are involved. I believe these statutory damages function as a deterrent to infringement, and serve to ensure that those who might find themselves infringed, but with no other way of establishing their market value, will not be without a remedy of some kind. Such statutory damages generally do not exist for famous individuals who enjoy a vibrant business surrounding the use of his or her name, image or likeness. An infringement upon such personalities, whether living or deceased, typically will not be measured accurately based on the statutory damages provided by the relevant Right of Publicity law. In this way, committing a Right of Publicity infringement can become a very expensive proposition.
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