Two recent court cases and related proposed legislation affect publicity rights for some of the more notable entertainment icons. This article also summarizes common questions about valuing publicity and privacy rights.
What is a Right of Publicity?
Although sometimes blurred by courts and commentators, the right of publicity and the right of privacy are different torts. The right of publicity:
1. Protects only entertainers, athletes, and other celebrities who have succeeded in becoming famous;
2. Is a property right to exploit a celebrity’s name, voice, image, or likeness;
3. Can survive the celebrity’s death, and benefits heirs or assignees;
4. Measures damages through a commercial determination of the fair market value of the misappropriated exploitation;
5. When addressed through common law, is a misrepresentation of endorsement through the tort of passing off.
In contrast, the right of privacy:
1. Protects everyone, including both celebrities and non-celebrities;
2. Protects one’s peace of mind and the right to be left alone without unwanted intrusions;
3. Is a personal right that cannot be assigned;
4. Ends when the person whose privacy is invaded dies;
5. Measures damages based on mental distress that result from the undesired intrusion.
Where a postmortem right of publicity does not exist, one might still allege that an unauthorized use represents a false endorsement claim under the Lanham Act. The Lanham Act prohibits the use of any name, symbol, or device that is likely to deceive or cause consumers to be confused as to the source, sponsorship, approval, or association. In a false endorsement case, the celebrity’s identity functions as a trademark. Consequently, a Lanham Act filing requires evidence of consumer confusion, an element that would not need to be present in a right of publicity claim.
California’s Postmortem Publicity Rights and Recent Changes
California probably has the most comprehensive right of publicity laws in the United States, which other states have used as a model. Numerous other states have laws to protect the publicity rights of celebrities, including Florida, Illinois, Indiana, Kentucky, Massachusetts, Nebraska, Nevada, New York, Ohio, Oklahoma, Rhode Island, Pennsylvania, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin. Additional states address rights of publicity through common law.
Effective in 1985, the California Legislature enacted the Celebrities Rights Act to provide for a posthumous right of publicity that can transfer by contract, trust or testamentary instrument. The statute gave the right to all personalities who died on or after January 1, 1935 (within 50 years of the effective date of the statute), and provided that the posthumous right of publicity could be enforced for a period of 50 years after the personality’s death. The Legislature amended the statute in 1998 to:
1. Abrogate a court decision which limited the celebrity’s rights;
2. Distinguish between the permissible use of a celebrity’s likeness in works of art or entertainment, and those prohibited without consent in connection with products, goods and merchandise; and
3. Extend the protection period from 50 to 70 years, thus extending the right to all personalities who died on or after January 1, 1915 (within 70 years prior to the effective date of the 1985 statute).
This past May, two federal courts, one in California and one in New York, interpreted California’s post-mortem publicity rights statute as prohibiting publicity rights from passing under a deceased celebrity’s will if that celebrity died before January 1, 1985, the effective date of the statute. Both court cases involved the commercial use of images of Marilyn Monroe, who died in 1962. Both courts ruled that the statutory post-mortem rights to publicity established in 1985 could not be transferred by a testamentary instrument in 1962 (i.e., before the law was passed). In the California case, District Judge Margaret Morrow expressed concern that her ruling would take away the right of publicity from charitable institutions who had gained those rights through the residual clause of a will. Judge Morrow wrote, “Nothing in this order prevents legislatures from enacting right of publicity statutes so as to vest the right of publicity directly in the residuary beneficiaries of deceased personalities’ estates…”
SB 771 (Kuehl) accepts Judge Morrow’s invitation. This bill, sponsored by the Screen Actor’s Guild, abrogates these two recent court decisions by clarifying that a deceased celebrity’s right of publicity applies to individuals who died before January 1, 1985. If passed (which appears likely based upon support received to date), SB 771 will protect the publicity rights of celebrities who died before January 1, 1985. Effectively, this will support the economic interests of charitable interests and other non-relative heirs who have received these rights.
If passed, the law will strip the obvious economic value of these licensing opportunities from the photographers who (i) took the pictures of the celebrities, and (ii) would otherwise have a right to their exploitation. The photographer opponents to SB 771 claim that, if passed, the law would create a wave of lawsuits. In reality, the bill returns the law back to what was the status quo before the two recent lawsuits were decided in favor of the photographers.
California law does not apply outside where California has a nexus. This was interpreted in the Ninth Circuit in Cairns v. Franklin Mint Co., F.3d. (9th Cir, 2002). Pursuant to Civil Code Section 946, the court determined that the decedent must be a resident of California or a resident of another jurisdiction that has similar postmortem rights. In Cairns, the trustee of the Diana Princess of Wales Memorial Fund sued a California-based business that was selling a broad range of memorabilia without permission. The Court determined that, in the absence of any contrary law where the property is located, the rights of the owner’s residence apply, not where the claimed violation