When someone uses a person’s name, image, likeness, voice, or identity for commercial gain without permission, the financial damages generally come down to three measures I can quantify: what a license for that use would reasonably have cost (the lost-license-fee or fair-value measure), the portion of the infringer’s profit that is fairly attributable to the misappropriated identity (disgorgement or unjust enrichment), and any lasting harm to the value of the person’s persona and future endorsement opportunities. The right measure — or combination of measures — depends on the facts, the applicable state’s law, and whether the plaintiff is a well-known personality with a track record of paid deals or an ordinary individual without one.
I am Joey Friedman, a CPA, Accredited in Business Valuation (ABV), and forensic accountant in Florida, and I serve as a financial-damages expert in commercial and intellectual-property disputes. My role in a right-of-publicity matter is narrow: I quantify the economic loss and the wrongful gain in dollars. I do not opine on whether the right was infringed, which state’s law governs, or whether a use was protected expression — those are legal questions for counsel and the court. This article explains how the dollars get built once the lawyers have framed the claim, so attorneys and the people they represent can understand what a credible damages analysis looks like and what records make it stronger.
What a Right of Publicity Protects, in Plain Terms
The right of publicity recognizes that each person controls the commercial exploitation of their own identity. In practice that usually means a person’s name, photograph or image, recognizable voice, signature, and likeness — and, increasingly, digital recreations. When a business puts those attributes on a product, a label, a billboard, a social feed, or an advertisement without consent, it has taken something of economic value the person would otherwise have been paid to provide.
Two features of this area matter for the damages work. First, there is no single national statute; protection comes from a patchwork of state statutes and state common law, and the available remedies differ from state to state. Florida, for example, has its own statutory right. Second, the modern name, image, and likeness (NIL) environment — college athletes, social-media creators, and influencers now signing paid deals — has expanded the universe of people who have an actual, provable market value for their identity. That market data is exactly what I anchor a damages opinion to.
Because the legal contours vary by jurisdiction and continue to evolve, I treat the choice of governing law and the scope of the protected right as inputs handed to me by counsel. My job starts after that determination is made.
The Three Financial Measures I Build
Most right-of-publicity damages analyses reduce to three distinct economic questions. They are not mutually exclusive, but they cannot simply be stacked on top of one another without care, because some of them measure overlapping harm. Counsel decides which theories to plead; I quantify each one cleanly and flag where they would double-count.
Measure One: The Reasonable License Fee (Fair Value of the Use)
The most common compensatory measure is the fair value of the use that was taken — what the parties would have agreed to in an arm’s-length license negotiation for that exact use, had the user asked first. This is a willing-buyer, willing-seller construct: the price two informed parties, neither under compulsion, would have set for the right to use the identity in the way it was actually used.
I build this number with a market approach. I assemble the comparable transactions that best match the infringing use along the dimensions that drive price — the media channel (print, packaging, broadcast, digital), geographic reach, duration of the run, prominence of the placement, and product category. Then I adjust those comparables up or down to reflect how the infringing use differs from each one, and I derive the fee a reasonable negotiation would have produced. The cleaner the person’s own history of paid deals, the tighter this estimate becomes, because that history is the most directly relevant comparable set of all.
Measure Two: Disgorgement of the Infringer’s Attributable Profit
A separate measure looks at the wrongdoer rather than the plaintiff: how much profit did the infringer earn that is fairly attributable to the use of the identity? This is the unjust-enrichment or disgorgement theory, and many right-of-publicity statutes expressly allow recovery of profits attributable to the unauthorized use to the extent those profits are not already captured in the compensatory award. The mechanics in many jurisdictions follow a familiar burden-shifting pattern: the plaintiff proves the infringer’s gross revenue connected to the use, and the defendant must prove its deductible costs and the share of profit attributable to factors other than the plaintiff’s identity. I explore this profit-based theory in more depth in my discussion of unjust enrichment and disgorgement of profits.
The hard analytical work here is apportionment, which I address in its own section below. It is rarely true that the persona drove all of the profit; the product, the price, the packaging, the distribution, and the brand all contribute, and a defensible opinion separates the persona’s contribution from everything else.
Measure Three: Harm to the Persona and Future Licensing Value
The third measure captures lasting damage to the value of the identity itself — dilution of the persona, harm to reputation or endorsement standing, and impairment of future licensing income. If an unauthorized use cheapens a personality’s image, ties them to a product or message they would never have endorsed, or makes future sponsors less willing to pay, that diminished future value is a real economic loss. One way courts have approached the reputational piece is to measure the cost of a corrective advertising campaign needed to undo the public impression created by the misuse. This measure is the most fact-dependent and least mechanical of the three, so I ground it in evidence — declines in deal flow, reduced renewal rates, or documented loss of specific opportunities — rather than speculation.
Celebrity Versus Non-Celebrity Plaintiffs
The plaintiff’s profile changes how I build the analysis more than almost any other factor.
For an established personality with a documented book of endorsement deals, the market approach is the workhorse. Prior contracts for comparable uses give me real, transaction-based anchors, and an industry expert can speak to prevailing licensing and endorsement rates for the channel and category at issue. A well-known figure’s identity often carries a quantifiable premium, and the data to prove it exists.
For an ordinary individual — a model early in a career, a private person whose photo was lifted into an ad, a creator without a track record — direct comparables are thinner. The person may have no prior paid deals, or only a few, so I reason from similarly situated individuals and from going market rates for the type of use rather than from the plaintiff’s own deal history. There can also be a recognized first-use value: the premium attached to the very first commercial appearance of a person’s image, which the infringer effectively appropriated. In these situations the testimony of an industry expert who knows standard day rates and usage fees becomes central, and the analysis, while still rigorous, carries more estimation than a celebrity case anchored to signed contracts. Non-celebrity matters also more often include non-economic components — emotional harm and mental distress — which are outside my financial lane and are quantified by the trier of fact, not by me.
How Comparable Deals Anchor a License Value
Comparables are the foundation of a credible license-fee opinion, so I am disciplined about selecting and adjusting them. The questions I work through include:
- Channel and format. Was the use on product packaging, a billboard, broadcast, social media, or a printed flyer? Each commands a different rate structure.
- Reach and audience. A national campaign across many media is worth far more than a flyer distributed to a small professional audience in one region.
- Duration. A six-month run differs from a multi-year usage right, and usage fees typically scale with the term.
- Prominence and exclusivity. A front-of-package hero image or a headline endorsement is priced differently than incidental background use.
- Category fit and any reputational mismatch. Pairing a personality with a product category they would never associate with affects both the license value and the dilution analysis.
Where the plaintiff has prior deals, those are the first and best comparables. Where they do not, I look to deals struck by similarly situated personalities and to industry rate evidence. Much of this pricing is not public, which is why credible expert input — mine on the financial measurement and an industry specialist on prevailing rates — matters so much. The same comparable-anchoring discipline runs through related IP damages work; I describe the broader framework in my overview of trademark and copyright damages.
Apportionment: Separating the Persona From Everything Else
Apportionment is where many profit-based right-of-publicity claims are won or lost. When an infringer sells a product that carries a misappropriated image, the total profit reflects many drivers — the brand, the formulation or quality, the price, the packaging design, the color scheme, the distribution network, and the marketing spend, in addition to the persona. A responsible disgorgement opinion does not hand the plaintiff the entire profit on the product line; it isolates the slice attributable to the identity.
Doing this well requires evidence, not assertion. I look for marketing studies, sales patterns before and after the image appeared, the relative prominence of the persona versus other design elements, consumer-perception data, and management’s own attribution of what drives demand. The plaintiff generally carries the initial burden of showing that some meaningful share of profit is attributable to the use; once that is established, the burden shifts to the defendant to disentangle the contributions of the other factors it claims drove the sales. I also watch for a decisive distinction the courts have drawn: the value must flow from the plaintiff’s own identity, not from a generic image or icon that merely happened to use the plaintiff’s photo. If the attribution rests on the icon rather than on the recognizable person, the profit theory can fail. That same need to tie a financial figure to a specific, provable cause runs through all of my economic damages work.
A Hypothetical Illustration
The figures below are entirely invented for teaching purposes. They are not drawn from any real case, any real client, or any actual engagement of mine — they exist only to show how the three measures interact and why they cannot simply be added together.
Assume a beverage company ran a recognizable individual’s image on the front label of a product line for eighteen months without permission, in a market where that person had a modest but documented history of paid endorsements.
| Component | Hypothetical figure | How it is built |
|---|---|---|
| Infringer revenue on the labeled product line | $8,000,000 | Gross sales tied to the line that used the image |
| Less: deductible costs the defendant proves | $5,000,000 | COGS and allocable operating expenses |
| Net profit on the product line | $3,000,000 | $8,000,000 − $5,000,000 |
| Persona’s apportioned share of that profit | 20% | Supported by attribution evidence |
| (A) Disgorgement — attributable profit | $600,000 | $3,000,000 × 20% |
| (B) Reasonable license fee for the actual use | $250,000 | Market approach from comparable endorsement deals |
| (C) Harm to future licensing value (dilution) | $150,000 | Reduced renewal pricing and lost opportunities |
Here, (A) the $600,000 disgorgement and (B) the $250,000 license fee are competing measures of the same wrongful taking — recovering both would compensate the same harm twice, so counsel would typically elect the larger supportable figure rather than sum them. The $150,000 in (C) addresses a distinct, forward-looking harm to the persona’s value and can, depending on jurisdiction and proof, stand alongside whichever of (A) or (B) is chosen. My written analysis lays out each measure separately and states plainly where they overlap, so the court and counsel can decide how the pieces fit together. Building each measure on a verifiable foundation is the same standard I apply when I assess lost profits to a reasonable degree of certainty.
The Overlap With Trademark and False-Endorsement Theories
Right-of-publicity claims frequently travel alongside a federal false-endorsement theory, because an unauthorized use of a recognizable identity can imply that the person endorsed a product when they did not. In that framing, a person’s persona functions much like a trademark, and the false-endorsement claim addresses the consumer confusion the misuse creates.
For my purposes, the practical point is avoiding duplication. When a state-law right-of-publicity recovery and a federal false-endorsement recovery both compensate the identical economic harm — for instance, the fair value of the same misused voice or image — a court may treat the second award as duplicative and vacate it. So while counsel will often plead every available theory and let the court sort out overlap, my damages model keeps the measures separate and transparent, showing exactly what each one captures so nothing is counted twice. This is the same discipline I bring to other intellectual-property damages engagements, including patent infringement damages and trade secret damages, where reasonable-royalty and lost-profit measures must be reconciled rather than piled on top of one another.
What Strengthens a Right of Publicity Damages Analysis
The quality of a damages opinion is driven by the quality of the underlying records. The materials that move an analysis from estimated toward verified include:
- The plaintiff’s own deal history — prior endorsement, licensing, or appearance contracts, with rates, terms, channels, and durations.
- The infringer’s financial records — revenue tied to the product or campaign that used the identity, and the cost detail needed to evaluate claimed deductions.
- Evidence of the use itself — where the image or name appeared, how prominently, for how long, and across which media and territories.
- Attribution and marketing evidence — studies, internal analyses, or sales data on what actually drove demand, the heart of apportionment.
- Forward-looking impact — documented changes in deal flow, renewal pricing, or specific opportunities lost after the misuse.
When those records exist, I tie figures directly to sources and show my work. Where they are incomplete, I document the limitation and rely on supportable industry data and reasoned assumptions rather than filling gaps with speculation. The same transparency standard governs my broader expert witness and litigation support engagements.
FAQ
What is the most common way to measure right of publicity damages?
The reasonable license fee — what a willing licensee would have paid the person for the exact use that was taken — is the most frequently used compensatory measure. I build it with a market approach, anchoring to comparable endorsement or licensing deals and adjusting for differences in media, reach, duration, and prominence. Where the infringer earned substantial profit from the use, a separate disgorgement measure may produce a larger recovery, and counsel often elects whichever supportable figure is greater.
Can a person who is not a celebrity recover for misuse of their image?
Yes. The right of publicity protects everyone’s identity, not only famous people. The difference is in how the dollars are measured: a non-celebrity usually lacks a deep history of paid deals, so the analysis leans on comparable rates for similar individuals and on standard industry usage fees rather than on the person’s own contracts. There can also be a recognized first-use value attached to the initial commercial appearance of someone’s image.
How do you separate the persona’s value from everything else that drove sales?
That is the apportionment question, and it is the core of any profit-based claim. I use marketing data, before-and-after sales patterns, the relative prominence of the persona versus other design elements, and consumer-perception evidence to isolate the share of profit fairly attributable to the identity. Courts also require that the value flow from the plaintiff’s actual, recognizable identity rather than from a generic image, so I make sure the attribution ties to the specific person.
Do you decide whether the right of publicity was infringed or which state’s law applies?
No. Whether a use was unauthorized, whether it is protected expression, and which jurisdiction’s law governs are legal questions for counsel and the court. I am the financial-damages expert. Once the legal framework is set, I quantify the economic loss and the wrongful gain in dollars, with each measure built on verifiable support.
Can a plaintiff recover the license fee, the infringer’s profits, and dilution all at once?
Not without care. The reasonable license fee and the disgorgement of attributable profit are typically competing measures of the same taking, so recovering both would compensate the same harm twice; counsel usually elects the larger supportable one. Harm to future licensing value is a distinct, forward-looking loss that may stand alongside one of the other two. My report keeps every measure separate and flags any overlap so nothing is double-counted.
How do I reach you to discuss a right of publicity damages matter?
You can reach my office at 954-282-9615 to discuss an engagement. My fees are typically billed hourly at approximately $400 per hour, the Florida market average. I am glad to talk through what records exist, which measures fit the facts, and how a credible damages analysis would be structured before any work begins.
About the Author
Joey Friedman is a CPA, Accredited in Business Valuation (ABV), and forensic accountant who holds a Master of Accounting and a Master of International Business and is a member of the AICPA and the Association of Certified Fraud Examiners. He also holds a Florida real estate license. Beyond those credentials, he has personally owned and operated more than a dozen of his own businesses across industries including marketing, printing, transportation, restaurants, hospitality and entertainment, and event planning — so he understands how to quantify the value of a misappropriated name, image, or likeness with both a forensic accountant’s rigor and an owner-operator’s first-hand grasp of how a brand and a persona actually drive sales.
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