Fee petition mechanics · Updated June 2026
California right of publicity attorney fee petition mechanics: unauthorized commercial use date as primary Welch anchor under Civ. Code § 3344(a), knowing commercial use advisory, and right of publicity mandatory fee petition advisory
California right of publicity solos billing hourly on Civil Code § 3344(a) mandatory attorney fees — in actions where the primary Welch temporal anchor is the DATE OF FIRST UNAUTHORIZED COMMERCIAL USE documented in the DEFENDANT'S OWN COMMERCIAL CAMPAIGN RECORDS (television broadcast logs, print publication tearsheets, digital advertising campaign launch metadata in Google Ads/Meta Ads/programmatic systems, product packaging print run dates, social media post dates, or commercial licensing agreement dates — entirely PRIVATE COMMERCIAL RECORDS held in the defendant's own advertising/marketing systems; California right of publicity practice is the ONLY practice area in the fee-petition-mechanics series where the primary Welch anchor is in the DEFENDANT'S OWN COMMERCIAL CAMPAIGN RECORDS — distinct from every government database primary anchor (court filings, DLSE, CRD, DFPI, CDPH, EDD, county recorder), every neutral private institutional database anchor (JAMS/AAA arbitration portal, DFPI franchise registration, SoS BizFile, California DMV Vehicle Registration simultaneously indexed by state agency), every private commercial transaction document anchor (real estate TDS, escrow close) where the anchor document is created by agreement between parties; the § 3344(a) primary Welch anchor is uniquely in the UNILATERAL COMMERCIAL RECORDS OF THE DEFENDANT — records the defendant created for its own commercial purposes, not at the plaintiff's request or agreement, not filed with any government agency, and not accessible without civil discovery; the date of first unauthorized commercial use is documented in records that are solely in the defendant's possession before the civil action is filed) — generate three billing gaps driven by advisory calls on the commercial exploitation discovery and litigation calendars outside plaintiff counsel's control: unauthorized use discovery and § 3344(a) knowing use and § 3344(d) First Amendment exemption analysis advisory calls (7 clients × 2 calls × 42 min × 55% untracked ≈ 5.39 hrs = $1,617–$2,695/year at $300–$500/hr), commercial exploitation scope and damages calculation and civil complaint advisory calls (6 clients × 3 calls × 44 min × 55% untracked ≈ 7.26 hrs = $2,178–$3,630/year), and § 3344(a) mandatory fee petition and Ketchum multiplier advisory calls (5 clients × 2 calls × 44 min × 55% ≈ 4.03 hrs = $1,210–$2,017/year). For a solo California right of publicity practice, the annual billing gap from advisory call underlogging is $5,005–$8,342.
TL;DR
ClaimHour captures every unauthorized commercial use discovery advisory call that starts the § 3344(a) mandatory fee documentation period, every commercial exploitation scope and civil complaint strategy advisory call on the defendant's campaign calendar, and every § 3344(a) mandatory fee petition and Ketchum multiplier advisory call on the post-judgment calendar — passively, no timer, no audio, no call contents. $29–$59/mo. No PMS required.
Unauthorized commercial use discovery and § 3344(a) knowing use analysis advisory: calls on the commercial exploitation discovery calendar
The date of first unauthorized commercial use — documented in the defendant's own advertising and commercial campaign records — is the primary Welch temporal anchor for Civ. Code § 3344(a) attorney fee billing documentation. California right of publicity practice is the ONLY practice area in the fee-petition-mechanics series where the primary Welch anchor is in the DEFENDANT'S OWN COMMERCIAL RECORDS. Every other primary Welch anchor in the fee-petition-mechanics series is documented in a neutral or government record accessible to the plaintiff without civil discovery: government databases (California Superior Court CMS, DLSE, CRD, DFPI, CDPH, EDD, LWDA), county recorder instruments (public records), private institutional records (JAMS/AAA arbitration portal — the respondent and claimant both receive the case number; DFPI franchise registration — publicly searchable; SoS BizFile — publicly searchable), or private commercial transaction documents where both parties have copies (DMV VIN purchase contract, real estate TDS, escrow close). The § 3344(a) primary Welch anchor is uniquely in the defendant's unilateral commercial records: television broadcast logs are held by broadcast stations and production companies; digital advertising campaign metadata is in the advertiser's Google Ads/Meta Ads accounts; print publication tearsheets are held by the publisher; product packaging print run records are in the manufacturer's production database. Before the civil action is filed and discovery is served, plaintiff counsel must rely on publicly accessible evidence of the unauthorized use (the advertisement itself, if publicly viewable) and on client contemporaneous evidence (screenshots, recordings, purchase receipts for products bearing plaintiff's likeness). The Hensley lodestar start date in a § 3344(a) matter is the client's discovery of the first unauthorized use — not the date of first use (which may be earlier) — because the § 3344(a) statute of limitations runs from discovery, and the advisory call at the moment of discovery starts the contemporaneous billing documentation obligation.
Three unauthorized use discovery and § 3344(a) knowing use analysis advisory call types generate untracked billing: (1) unauthorized commercial use discovery and § 3344(a) element analysis advisory — arrives when client discovers unauthorized use and retains counsel (requiring defendant's commercial campaign records as primary Welch anchor: what is the earliest discoverable date of first unauthorized commercial use in defendant's records; § 3344(a) element analysis: (i) knowing use — did defendant know it was using plaintiff's name, voice, signature, photograph, or likeness; (ii) on or in products/merchandise/goods or for purposes of advertising/selling/soliciting purchases — commercial use required, not mere expressive use; (iii) without prior consent — was there any licensing agreement, implied consent from voluntary commercial participation, or industry usage consent; (iv) damages — actual injury from unauthorized commercial use; § 3344(a) statutory minimum damages: $750 per unauthorized use, or actual damages if greater; § 3344(e) first exemption: use of name or likeness in connection with newsworthy or public interest content; California two-year discovery rule for § 3344 claims — 42–48 min); (2) § 3344(d) news/public affairs exemption and First Amendment transformative use defense analysis advisory — arrives when defendant asserts news/public affairs or transformative use defense (requiring § 3344(d): use in connection with news, public affairs, sports broadcast, or political campaign does not require consent; First Amendment transformative use test per Comedy III Productions v. Saderup (2001) 25 Cal.4th 387: is the defendant's commercial use primarily exploiting plaintiff's commercial value (§ 3344 violation) or primarily creative/expressive transformation (First Amendment protection); Winter v. DC Comics (2003) 30 Cal.4th 881 — comic book characters based on real persons as transformative use; Hilton v. Hallmark Cards (9th Cir. 2010) 599 F.3d 894 — parody greeting card transformative use test; advisory call analyzing First Amendment defense arrives when defendant first asserts it — on defendant's litigation calendar outside plaintiff counsel's control — 42–48 min); (3) § 3344.1 deceased personality rights analysis (if applicable) advisory — arrives when plaintiff holds successor rights in deceased personality's name or likeness (requiring § 3344.1(a)(1): deceased personality's right of publicity is property right that descends to heirs/successors for 70 years post-death; § 3344.1(a)(1) mandatory fee provision mirrors § 3344(a); § 3344.1(b) registration requirement: successor must register with California Secretary of State to maintain right; § 3344.1(c) termination right: heirs may terminate any transfer of rights made before January 1, 1985; § 3344.1 claim is concurrent with and independent of § 3344(a) claim if deceased personality's rights are at issue — 42–48 min). At 55% untracked: 7 clients × 2 calls × 42 min × 55% = 323.4 min / 60 = 5.39 hours = $1,617–$2,695/year at $300–$500/hr.
Commercial exploitation scope and damages calculation and civil complaint advisory: calls on the licensing and campaign calendar
The commercial exploitation calendar — governed by the defendant's advertising campaign schedule, media buy duration, product packaging print run, or social media content calendar — is entirely outside the plaintiff's attorney's control. Each channel of unauthorized commercial use discovered generates an advisory call analyzing the scope of the § 3344(a) violation and the applicable damages theory. Eastwood v. Superior Court (1983) 149 Cal.App.3d 409 — California common law right of publicity coexists with § 3344 statutory right; common law right covers uses beyond § 3344 enumerated categories but no mandatory fees. Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387 — transformative use test for First Amendment defense to right of publicity claims; White v. Samsung Electronics America, Inc. (9th Cir. 1992) 971 F.2d 1395 — California right of publicity extends beyond § 3344 enumerated categories via common law; Downing v. Abercrombie & Fitch (9th Cir. 2001) 265 F.3d 994 — § 3344 commercial use in advertisements. Ketchum v. Moses 24 Cal.4th 1122 (2001) positive multiplier. PLCM Group Inc. v. Drexler 22 Cal.4th 1084 (2000). Hensley v. Eckerhart 461 U.S. 424 (1983). Missouri v. Jenkins 491 U.S. 274 (1989).
Three commercial exploitation scope and civil complaint advisory call types generate untracked billing: (1) multi-channel unauthorized use scope and damages theory advisory — arrives as unauthorized use in additional channels is discovered (requiring each additional media channel as a separate use for statutory minimum damages ($750 per use or actual damages per use if greater); unjust enrichment/profits calculation: what portion of defendant's profits from the campaign are attributable to plaintiff's commercial value; fair market value of endorsement licensing: what would a comparable endorser have charged for a negotiated license in this medium for this duration; § 3344(a) cumulative damages across all unauthorized uses; § 3294 punitive damages: defendant's knowing unauthorized use with oppression/malice analysis; Civ. Code § 3294 corporate authorization: did officer/director/managing agent of advertiser authorize knowing unauthorized use — 44–50 min); (2) civil complaint drafting and § 3344 + common law ROP + § 1700 talent agency act advisory — arrives when complaint is prepared (requiring § 3344(a) count: knowing unauthorized commercial use without prior consent; § 3344.1 count if deceased personality; California common law right of publicity count: captures uses beyond § 3344's name/voice/signature/photograph/likeness enumeration (e.g., distinctive attributes, persona, trade dress); concurrent false endorsement claim under Lanham Act § 43(a) (15 U.S.C. § 1125(a)) if defendant created false impression of plaintiff's endorsement — separate federal claim, no Ketchum multiplier for federal component; Lab. Code § 1700 et seq. Talent Agency Act: if defendant contracted for plaintiff's commercial services without a licensed talent agent, concurrent TAA claim; California Superior Court unlimited civil complaint — 44–50 min); (3) demand letter and licensing negotiation advisory — arrives when pre-litigation demand and licensing offer are prepared (requiring fair market endorsement value analysis: comparable celebrities, comparable media, comparable duration; § 3344(a) statutory minimum: $750 per use or actual damages; demand letter to defendant documenting date of unauthorized use discovery as secondary Welch anchor; demand letter date as tertiary Welch anchor for any cease-and-desist response from defendant; Ketchum multiplier analysis from unauthorized use date through all advisory phases — 44–50 min). At 55% untracked: 6 clients × 3 calls × 44 min × 55% = 435.6 min / 60 = 7.26 hours = $2,178–$3,630/year at $300–$500/hr.
§ 3344(a) mandatory fee petition and Ketchum multiplier advisory: calls on the post-judgment calendar
Civ. Code § 3344(a) — "The prevailing party in any action under this section shall also be entitled to attorney's fees and costs" — is a mandatory attorney fee provision for both plaintiff and defendant. If plaintiff prevails: fees are mandatory; if defendant prevails (e.g., § 3344(d) news/public affairs exemption, transformative use First Amendment defense, or prior consent established): fees are also mandatory for the defendant. The § 3344(a) fee petition requires a Hensley lodestar from the unauthorized commercial use discovery date through the § 3344(d) First Amendment exemption analysis through the commercial exploitation scope investigation through the civil complaint through judgment. Ketchum v. Moses 24 Cal.4th 1122 (2001) positive multiplier: the contingent risk of the defendant asserting a viable § 3344(d) news/public affairs exemption or Comedy III Productions transformative use First Amendment defense — defenses that are not knowable before civil discovery of defendant's campaign records — supports the Ketchum multiplier. If concurrent Lanham Act § 43(a) false endorsement claim: bifurcated California § 3344(a) component (Ketchum-multiplier eligible) and federal Lanham Act component (City of Burlington v. Dague (1992) no-multiplier for federal fee-shifting). PLCM Group prevailing market rate. Missouri v. Jenkins fees-on-fees.
Two § 3344(a) post-judgment advisory call types generate untracked billing: (1) § 3344(a) mandatory fee petition assembly and unauthorized use date to judgment lodestar advisory — arrives when plaintiff prevails at trial or settlement (requiring § 3344(a) mandatory fee petition: Hensley lodestar from unauthorized commercial use discovery date through § 3344(d) exemption analysis through commercial exploitation scope investigation through California Superior Court civil complaint filing date through judgment; each advisory call on the commercial exploitation discovery calendar documented with date and content; Ketchum multiplier justification: contingent risk of § 3344(d) exemption or Comedy III transformative use defense at the time of first advisory call; PLCM Group prevailing market rate for entertainment/IP plaintiffs' bar; Missouri v. Jenkins fees-on-fees for § 3344(a) fee petition preparation from unauthorized use date; § 3344.1 concurrent deceased personality rights fee petition if applicable — 44–50 min); (2) defendant fee petition risk advisory — arrives when defendant asserts § 3344(d) exemption or prevails on transformative use defense (requiring § 3344(a) symmetric fee: prevailing defendant also entitled to mandatory fees; advisory to plaintiff on § 3344(a) fee exposure risk if § 3344(d) news/public affairs exemption is established or if Comedy III transformative use defense succeeds; strength of defendant's § 3344(d) exemption claim analysis; strength of plaintiff's prima facie § 3344(a) knowing commercial use claim; proportionality of § 3344(a) fee exposure vs. § 3344(a) damages recovery if plaintiff proceeds — 44–50 min). At 55% untracked: 5 clients × 2 calls × 44 min × 55% = 242 min / 60 = 4.03 hours = $1,210–$2,017/year at $300–$500/hr.
How ClaimHour fits California right of publicity practice
California right of publicity solos billing hourly on Civ. Code § 3344(a) mandatory fees — with unauthorized commercial use discovery advisory calls arriving when clients discover their name, voice, signature, photograph, or likeness in defendant's advertising campaign, § 3344(d) First Amendment exemption and commercial exploitation scope advisory calls arriving as defendant's campaign records are discovered, and § 3344(a) mandatory fee petition and Ketchum multiplier advisory calls arriving on the post-judgment calendar — and if your § 3344(a) lodestar documentation must satisfy the Hensley contemporaneous-record standard from the unauthorized commercial use discovery date (the ONLY practice area in the fee-petition-mechanics series where the primary Welch anchor is in the DEFENDANT'S OWN COMMERCIAL CAMPAIGN RECORDS — distinct from every government database, every neutral private institutional record, and every party-agreement private commercial document in the series), through the § 3344(d) exemption analysis, through the commercial exploitation scope investigation, through the California Superior Court civil complaint, through the § 3344(a) fee petition, ClaimHour was built for that gap.
Related questions
Why is the defendant's commercial campaign record the primary anchor for § 3344(a) billing when it's in the defendant's possession, not the plaintiff's?
The date of first unauthorized commercial use is documented in the defendant's advertising and marketing records — television broadcast logs, digital campaign metadata, product packaging print dates. Before civil discovery, plaintiff counsel must rely on publicly visible manifestations of the unauthorized use (the advertisement itself, if publicly viewable) and on the client's contemporaneous screenshot or recording. The Hensley lodestar starts at the client's discovery date — the date the client first contacts counsel about the unauthorized use — because that is the date advisory billing begins. The defendant's records establish the actual first-use date (which may precede discovery), but the fee documentation period starts at discovery, making the client's discovery date the operative primary anchor for lodestar purposes before the civil action is filed.
How does the § 3344(d) news/public affairs exemption create advisory billing gaps distinct from the § 3344(a) knowing commercial use element?
The § 3344(a) knowing use element is established when defendant knew it was using plaintiff's name/voice/signature/photograph/likeness — a straightforward knowledge analysis present in every § 3344 claim. The § 3344(d) news/public affairs exemption is an affirmative defense: defendant must prove the use was 'in connection with' news, public affairs, sports, or political content, not a commercial endorsement or product promotion. The § 3344(d) exemption is typically asserted in defendant's pre-litigation demand letter response — creating an advisory call analyzing whether the use was genuinely news/public affairs (§ 3344(d) exemption) or a commercial exploitation using a news peg (§ 3344(a) violation). Comedy III Productions v. Saderup (2001) 25 Cal.4th 387 transformative use analysis, while related, is a separate First Amendment defense applicable to creative/expressive works. Both defenses arrive on the defendant's litigation calendar, not on any practitioner-scheduled event, generating advisory calls that are systematically untracked.