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The law right of publicity to celebrities who died in California and the Impact of Sb 771
Creating the right Advertising in California
The "right of publicity" is generally defined as the right to control or prevent unauthorized use or commercial exploitation of his name, likeness, voice or "personality". [1] The right of publicity has evolved the right to privacy, which itself has evolved dramatically over a century. In 1890, Samuel D. Warren and Louis D. Brandeis published an article in the Harvard Law Review entitled "The right to privacy [2], in which they advocated a remedy for those injured by the unauthorized public disclosure of the truth, but embarrassing private facts [3].
Before the 1900s, mid some courts and state legislatures have adopted some elements of the theory of Warren-Brandeis. However, the question arose as to how enforce these rights to celebrities who have voluntarily and affirmatively sought the spotlight.
Second Circuit Judge Jerome Frank answered this question in 1953 when he coined the term "right of publicity" in the case of Haelan Laboratories Inc. v. Topps Chewing Gum, Inc.. [4] The case Haelan whether a baseball player could assign exclusive rights to produce a card with his photo on it to one manufacturer baseball card. [5] The Court determined that the eminent personalities who have a "right of publicity" [6], who had an interest transferable, unlike strictly personal – and therefore non-transferable – Right to Privacy [7].
The opinion of Judge Frank was followed an important article by Professor Melville B. Nimmer has analyzed the right of publicity as an assignable property right [8]. Nimmer explained that mere right to privacy does not sufficiently address the particular problems of celebrities, while the right to privacy protected individuals from the indignity and embarrassment, right to publicity dealt with the ability of a celebrity (and, theoretically, the ability of anyone) to protect the commercial value of its image and identity [9].
California First codified law advertising in 1971, when the California legislature adopted section 3344 of the Civil Code, which allows the recovery by any living person whose name, photograph, or likeness has been used for commercial purposes without his consent. [10] The California courts have recognized both by law and the law common law of publicity. [11]
However, the common law and statutory rights of privacy were only available to applicants living the law was not freely descendible and thus expired automatically upon the death of the person claiming the right. [12] This very the heart of two companion cases decided in the seminal 1979 Lugosi v. Universal Pictures [13] and Guglielmi v. Spelling-Goldberg Productions. [14] In these cases, the California Supreme Court has determined that the heirs of deceased celebrities had no legal protections against the posthumous use of celebrity image.
In Lugosi, the heirs of actor Bela Lugosi (best known for playing the title role in the 1930 film, "Dracula") sued to enjoin and recover profits from Universal Pictures to License Lugosi's name and image on merchandise. [15] The California Supreme Court upheld the decision of the appellate court, ruling that the right to exploit his name and its image is personal and should be exercised as appropriate by him during his life [16].
Similarly, in Guglielmi, the Supreme Court California has cited and relied upon his advice Lugosi in holding that the heirs of Rudolph Valentino could not obtain an injunction or damages from the defendant Valentino because right of publicity was not descendible under the laws of California. [17] Because Valentino had not exploited his name and likeness of his lifetime, others may now be used without liability Valentino's heirs [18].
Tribunals outside of California honored the Lugosi and Guglielmi and decisions in the application of California law. In Groucho Marx Productions, Inc. v. Day and Night Company, Inc.. [19], the Second Circuit held that publicity rights have not been descendible under the law California. In this case, the Marx Brothers Assignees sued a production company interference with the rights of publicity of beneficiaries' production company incorporated three characters that closely resembled the Marx Brothers in the Broadway musical, "A Day in Hollywood / night in Ukraine. "The federal district court in New York had asked New York law, determining that New York recognized a right descendible advertising and make a summary trial the plaintiffs. [20] The Second Circuit, however, reversed that decision, saying the issue was descendibility governed by California law and, therefore, the plaintiffs were not entitled to compensation. [21]
Legislating a Post-Mortem Right of Publicity
Investments in Lugosi and Guglielmi hasty legislation to specifically to create a legal right descendible advertising. In 1984 the California legislature enacted Civil Code Article 990 (now Article 3344.1 in 1999), the creation of a post-mortem right of publicity for "deceased personalities," – people whose names, voices, signatures, photographs, portrait or had commercial value from the time of their death. [22] This law entered into force January 1, 1985.
Article 990 explicitly states that the right of publicity is a property right, "freely transferable, in whole or in part, by contract or through trust or testamentary documents "if the mutation occurred before that, or after the death of personality. [23] The law has held that the absence of an express transfer of this right, it automatically goes to the legal / intestate heirs of the deceased (spouse, children, parents). [24] If fame can not transfer the right explicitly and died without legal heirs, the right of the ad ends. [25] Otherwise, the extended right of publicity would expire 50 years after the death of the deceased. [26]
In an attempt to preserve maximum protections of the First Amendment to the places of creativity, the new statutory exemption from liability plays, books, magazines, newspapers, musical compositions, films and radio and television that used a deceased celebrity likeness, name, voice, etc. [27]
The registered owner of the rights to posthumously to the Three Stooges comedy act has invoked Article 990 to obtain damages against an artist who reproduced his charcoal drawings of the Law on lithographs and T-shirts. [28] The artist said his work was creative and transformative to justify protection of the First Amendment against the applicant's right of publicity claim, as the exemptions expressly listed in the Statute. The court agreed that when a work of art is so transformative that the value of labor stems primarily the responsibility and creativity of the artist rather than by the fame of the celebrity depicted, the work may be protected by the First amendment [29]. However, the Court determined that the representations Saderup were more literal than transformative – an obvious attempt only to exploit the reputation of the Three Stooges "- and therefore the First Amendment protection does not apply. [30] If Saderup wanted to continue to use these images, it must obtain the consent of the holder of the right of publicity.
However, this same list of exempt uses in Article 990 poses problems new, illustrated in two main cases:
In companies Joplin v. Allen [31], a federal district court applied Article 990 to see two acts of biographical play about the singer Janis Joplin died was not objectionable. Joplin devisees alleged that the game constituted copyright infringement as well as away from the privacy of Joplin and publicity rights. [32] The court determined that section 990 applies as unauthorized "merchandise, advertisements and endorsements," and it is explicitly excluded from liability [33].
The Ninth Circuit likewise exempt a dance instructional video from liability under section 990 in Astaire v. Best Film & Video Corp. [34] In Astaire, the widow of the famous dancer Fred Astaire sued a manufacturer of video tapes for use of image of Fred Astaire in a series of dance instruction videos – each band opened with about 90 seconds of images of Astaire. Mrs. Astaire claimed the company has breached its legal right to control the use of her husband's name and likeness under Article 990. [35]
District Central California agreed with Mrs. Astaire, saying the company used the image Astaire "on or in products, merchandise or property" in violation of the law. [36] But the circuit court reversed and remanded, holding that the tapes pre-recorded fell in the film " "Exemption of section 990 (n). [37] Indeed, the Court determined that the exemption applied film even if the use was an advertisement or commercial announcement [38].
The Astaire modified: Deleting exempt uses
After losing his trial difficult and costly, Mrs. Astaire teamed with the Screen Actors Guild to sponsor legislation that would clarify and expand the right to post-mortem publicity. The bill, SB 209, passed in 1999 and became known as the "Astaire Celebrity Image Protection Act."
More importantly, the amendment Astaire removed from the list of exempt uses of portraits of deceased celebrities, this which significantly increases the types of uses for which the consent of the heirs of fame is required. The bill also extended descendible the right of publicity from 50 years to 70 years after the death of celebrity. [39]
Despite these amendments to clarify and expand the descendible posthumous right of publicity, there remained a gap in the law which was revealed by two similar cases concerning posthumous rights of Marilyn Monroe: Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc. [40] and Shaw Family Archives, Ltd. v. CMG Worldwide, Inc. [41] (collectively, the "Monroe case"). When Marilyn Monroe died, she left the residue of his estate to her acting coach, Lee Strasburg, who at his death, left most of his estate to his wife, Anna Strasberg. [42] Anna Strasberg, then transferred his interest property in Monroe to Marilyn Monroe LLC, who helped CMG Worldwide, Inc. to use Monroe images and likenesses. [43] In both actions, the CMG has pursued other parts of their unauthorized use of the image of Monroe.
For Monroe, both courts interpreted section 3344.1 as prohibiting publicity rights pass by will if the person died before 1 January 1985. [44] In other words, the statutory right descendible advertising did not exist when Monroe died, yes, by law enforcement, it could not be a property she owned over death. [45] Because Monroe did not have the right property at the time of his death, she could not have transferred the residuary clause in his will. [46] Furthermore, even if Monroe had the right section 3344.1 only allows transfers to the legal heirs – Monroe had no legal heirs, if the law would end any event. [47] Both courts ruled against CMG on a summary trial.
Investments in the Monroe case had troubling consequences. Many celebrities and their heirs the deceased left or transferred residual assets to charities, which was based in part on their ability to license the images of famous for funding. Farms Monroe actually removed from these organizations many rights they had relied. Reflecting these concerns, the District Court Central District of California wrote:
The court reaches this conclusion with some reluctance, because … at least some personalities who died before the adoption California … Directly from the status of advertising [] left their residuary land to charities, which will be "robbed" of these rights under the holding of the court … As noted, however, nothing in this order prevents legislatures from enacting right of publicity laws, to give the right to advertise directly to the residuary beneficiaries of deceased persons estates or their successors-in-interest [48].
Amendment 771: Activation of transfers with retroactive effect to the residual estate
The California Legislature has wasted no time after the Court's suggestion Milton H. Greene. Only six weeks after the notice has been issued, State Senator (and former child actor) Sheila Kuehl [49] accelerated through the legislature [50] Senate Bill 771, specifically designed to clarify the scope of Cal. Section 3344.1 of the Civil Code and to repeal the decisions in cases Monroe [51].
SB 771 made the somewhat controversial several objectives. First, he explicitly stated that the right of a deceased celebrity's publicity applies to individuals whether or not they died before January 1, 1985. [52] The judge amendment, retroactively, the law of the deceased celebrity advertising existed and was transferred, even if they died before the enactment of section 3344.1. [53] In the case where the celebrity has not specific to the transfer of this right (and why would they, if they do not know it existed?), the right part of the residual estate to the personality the deceased and was transferred to anyone who has received these assets. [54] The owner of this right due to 70 years from the date of death celebrity to control the use of celebrity image for commercial purposes [55].
Despite efforts SB 771 to get prepared to move quickly, it still has not helped CMG Worldwide and Marilyn Monroe LLC (MMLLC). On November 21, 2007, armed with the new passed SB 771, CMG and MMLLC filed a motion for reconsideration in the case of Milton H. Greene, whose federal district court granted. [56] The court recognized that because of the passage of SB 771, CMG and MMLLC are entitled to assert the right to posthumously Monroe publicity under California law. [57] However, after a detailed analysis, the court has determined that Monroe was domiciled in New York, not California, at the time of his death. [58] Because New York does not recognize a common law or statutory right to posthumous publicity in 1962 because, unlike California, New York has not adopted a statute to recognize these rights retroactively, Monroe did not have the right of publicity when she died and could not therefore not be transferred to his will [59].
Right of publicity laws of other states
Although the right of publicity derives from the notion of constitutional right to privacy, it is created and implemented through the laws of the State. At least nineteen states have developed and adopted a statutory right of publicity [60], not all treat the right as descendible. [61] At least eleven other states only recognize a common law right to publicity. [62] The American Law Institute's Third Restatement of Unfair Competition (1995), Article 46, also recognizes the right of publicity as a separate legal theory.
The state of Indiana actually has every right track status of advertising on the books. [63] Promulgated in 1994, the Indiana law protects a deceased individual right of publicity for 100 years after his death, and includes protections for signature of celebrity, photography and gestures, and name the most typical image and likeness. [64] Otherwise, the law of Indiana is similar to Cal. Section 3344.1 of the Civil Code.
New York, on the other hand, gives celebrities a statutory claim against use of their "name, portrait or picture …. for advertising or trade purposes. "[65] New York Senator Martin Golden and Assemblywoman Helene Weinstein presented SB 6005 / Assembly Bill A08836 [66] in the Assembly New York Legislature. While the first attempts were made to rush the bill to the legislature of New York Bill has been discontinued, apparently because of concerns it is too broad in nature, which poses potential conflicts with the constitutional rights and other rights [67].
Possible adverse effects of SB 771
The reluctance of New York legislators to rush right in finding that his bill – the identical twin to California's SB 771 – reflects some serious doubts about the problems and potential result of SB 771.
Because SB 771 was retroactive, it may grant rights to certain people retroactively, while taking away the rights of others that they had relied in entering into contracts and otherwise operate legally certain images. [68] Accordingly, this area is certainly come for testing, with the strong possibility of some results untenable legal and subsequently, more legal changes.
Status of trying to anticipate some future litigation, including this condition: If a legal heir [69] has exercised its right to operate a likeness celebrity died before 1 May 2007, and that the exercise has not been successfully challenged in court by a transferee of property residual fame, assignees residual estate can not use SB 771 to come back now and claim the right to publicity. [70] In fact, in this factual scenario, the residual estate is forever forbidden to claim the right of publicity, which remains with the legal heirs in the statutory period [71].
However, this legal provision does not address what is certainly the most common situation – when a transferee celebrity real estate residual function file for damages and an injunction against a person or company who is legally used this image Celebrity or likeness for commercial purposes, long before the enactment of SB 771. Given the retroactive nature of SB 771, the residue sequence could theoretically back many years and return substantial benefits to an entity whose use had been legal all the time, and that permanently enjoin the future use by an entity who may have built an entire brand around use.
Because the right of publicity differs so dramatically from state to state, and because there is so much overlap between the right to advertising issues and issues relating to trademarks and copyright, first amendment protections, and other laws, several groups are pressing for Congress to adopt a federal law on advertising law. The proposal of the International Association for trademarks, for example, would amend the Lanham Act to add a federal right of publicity that would specifically preempt all state laws, both statutory law Civil and [72].
Proposed federal law does INTA right descendible and transferable to effective advertising for a period of time after the death of a celebrity. [73] However, it also includes a provision that the California law did not – a clause "grandfather" that protects the rights of prior users [74].
Conclusion
Undoubtedly, the right of the California statute of advertising remains at the forefront of the evolution of this legal concept. Because it contains an abundance Celebrity, a California law is often tested and modified during these tests reveal a loophole in the law. Senate Bill 771 does represents the final step in evolution, but it probably went too far, creating more legal problems to solve in May.
Consequently, SB 771 will certainly not be the last word on the statutory right descendible California advertising. What ultimately preempted by a new federal law or not, the law in California must consider the rights of prior users who have acted on their pre-SB 771 rights and are injured as a result of this bill retroactive. Future litigation on this very issue, probably followed by further legislative change is predictable.
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[1] See, eg, Miller v. Glenn Miller Prod. Inc., 454 F.3d 975, 99. 988-989, n. 6 (9th Cir. 2006).
[2] Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
[3] Id at 213.
[4] 202 F.2d 866, 868 (2d Cir. 1953).
[5] Id at 867.
[6] 202 F.2d 868.
[7] Id at 868-869.
[8] B. Melville Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203 (1954).
[9] Id at 203-04.
[10] Cal. Civil Code. Section 3344 (a). The law exempts from liability uses made in news, public affairs, sports broadcasts or accounts, and political campaigns. Cal Civil Code, Section 3344 (d).
[11] Miller v. Glenn Miller Prod., Inc., 454 F 3d 975, 988-89, n.6 (9th Cir. 2006).
[12] Lugosi v. Universal Pictures 25 Cal. 3d 813, 820-822 (1979).
[13] Lugosi, supra.
[14] 25 Cal. 3d 860 (Cal. 1979).
[15] Lugosi, 25 Cal. 3D 817.
[16] Id at 822-823.
[17] 25 Cal. 3D 864.
[18] The implication is clear that Lugosi and if Valentino actually signed a contract with the defendants concerning the use of their image during their lives, the heirs would be entitled to enforce these contracts posthumously. In these cases, however, the defendants were using the images without the benefit of a contract related to the use images.
[19] 689 F.2d 317 (2d Cir. 1982).
[20] 689 F.2d 319.
[21] Id. P. 323.
[22] Cal. Section 3344.1 of the Civil Code (h).
[23] (Former) Cal. Civil Code section 990 (b) (now amended and renumbered)
[24] id. 990 (d).
[25] Id at 990 (e).
[26] Id at 990 (g).
[27] Ibid. In 990 (n).
[28] Comedy III Productions Inc. v. Gary Saderup, Inc.., 25 Cal. 4th 387 (2001).
[29] 25 Cal. 4th at 407.
[30] Id 409.
[31] 795 F. Supp. 349 (WD Wash. 1992).
[32] Ibid. At 350.
[33] Id 351.
[34] 116 F.3d 1297 (9th Cir. 1997), as amended by 136 F. 3d 1208 (9th Cir. 1998).
[35] 116 F.3d at 1299.
[36] Id at 1300.
[37] Ibid. In 1301-1302.
[38] Id at 1302.
[39] Cal. Civil Code section 3344.1 (g).
[40] Milton H. Greene Archives, Inc. v. CMG Worldwide, I nc. (Unpublished) (No. CV-05-02200MMM), 2008 WL 655,604 (CD Cal. January 7, 2008), confirmed by a summary trial Archives Milton H. Greene v. CMG Worldwide, in C., ___ F. Supp. ___. 2008 WL 1922980, No. CV 05-2200 MMM (CD Cal. March 17, 2008).
[41] 486 F. Supp. 2d 309 (SDNY 2007).
[42] Shaw, 486 F. Supp. 312.
[43] Id
[44] Ibid. With 317, Milton H. Greene, 2008 WL 655604, at * 1.
[45] Shaw 319, Milton H. Greene, 2008 WL 655604, at * 1.
[46] Shaw 319.
[47] Shaw 319, Milton H. Greene, 2008 WL 655604, at * 1-2.
[48] Milton H. Greene court May 14, 2007 order a summary trial in favor of complainants, 36:15-20, n.38 and n.80.
[49] The bill was drafted and sponsored by the Screen Actors Guild at the instigation of the CMG. She received strong support from the Foundation Cecil B. DeMille, the Marilyn Monroe LLC, the Motion Picture and Television Fund, [John] Wayne Enterprises and the California Labor Federation.
[50] The bill passed by the California Legislature September 7, 2007 and was promulgated by Governor Arnold Schwarzenegger, October 10, 2007. She took effect January 1, 2008.
[51] Section 2 of the stat. 2007, c. 439 (SB 771).
[52] Cal. Civil Code section 3344.1 (b).
[53] Id
[54] Id.
[55] Cal. Section 3344.1 of the Civil Code (g).
[56] Milton H. Greene Archives v. CMG Worldwide, Inc.., ___ F. Supp. ___. 2008 WL 1922980, No. CV 05-2200 MMM (CD Cal. March 17, 2008).
[57] F. ____ Supp. to ____; 2008 WL 1922980 at * 3.
[58] Specifically, the Court noted that authorized representatives of the Estate of Monroe was represented repeatedly in various forums that Monroe was a resident of New York, not California, and has only been in California for temporary work, no intention to stay in California. The Court conducted a lengthy and detailed analysis to determine that the GCM has been prevented by judicial estoppel to say that Monroe was domiciled in California and therefore has a right of publicity under California law. 2008 WL 1922980, at * 33 – * 34.
[59] Id. At * 3.
[60] These 19 are: California (Cal. Civ. Code section 3344 and 3344.1), Florida (Florida Stat. Section 540.08) Illinois (Illinois Stat. Ch. 765 of section 1075 / 1 et seq.) Indiana (Ind. Code Section 32-36-1 et seq.) Kentucky (Ky. Rev. Stat. Ann. Article 391,170) Massachusetts (Mass. Gen. L. ch. 214 § 3a), Nebraska (Nebraska Rev. Stats. Section 20-202), Nevada (Nev. Stat. Sections 597.770 to 597.810), New York (NY Civil Rights Law Articles 50, 51), Ohio (Ohio Rev. Code Ann. Sections 2741.01 et seq.), Oklahoma (OK Stat., Title 12, Sections 1448 and 1449), Pennsylvania (Pa. Cons. Stat. Title 42, Section 8316), Rhode Island (RI Gen. Laws sections 9-1-28 and 9-1-28.1 (a) (2)), Tennessee (Code Ann Sections 47-25-1102 to 47-25-1107), Texas (Texas Prop. Code Ann. Section 26001 et seq.) Utah (Utah Code Ann. Section 45-3-1 et seq.), Virginia (Virginia Code Section 8.01-40), Washington (Washington Rev. Code Ann. 63.60-010 et seq.) And Wisconsin (Wisc. Stat. Article 895.50 (2) (b)).
[61] The law states the following "statutes of advertising does not appear to grant rights after death: Massachusetts Nebraska, New York, Rhode Island, Pennsylvania, Utah and Wisconsin.
[62] They are: Alabama, Arizona, Connecticut, Georgia, Hawaii, Maine, Michigan, Minnesota, Missouri, New Jersey and Oregon.
[63] Ind. Code. Ann. Sections 32-36-1 et seq.
[64] Id to 32-36-1-7 and 32-36-1-8 (a).
[65] NY Civ. Rights Act of sections 50 and 51 (McKinney 2007).
[66] Bill from New York is essentially identical to California's SB 771. Like SB 771, it was introduced immediately after the publication of decisions and Monroe was also supported by CMG. There were rumors that the CMG had hired a lobbyist specifically to assist the shipping bill.
[67] "Marilyn Monroe Historic Legislation adopted – Surprise in the CMG and MMLLC "PR-inside.com, June 25, 2007, located in http://www.pr-inside-com/marilyn-monroe-historic-legislation-halted-r161341.htm #.
[68] David Marcus, attorneys for Shaw Family Archives, claims (without specificity) that SB 771 is in conflict with the laws in California regarding wills and estates. The New York intellectual property attorney Nancy Wolff argues that the California legislature has violated its own rules of procedure when he rushed through SB 771. ( "California Adopts New Law Right of Publicity," pdnonline.com, October 12, 2007 (located http://www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003658099). If either of these assertions are true, they could provide additional grounds for legal challenges to SB 771.
[69] Other than someone which has been specifically disinherited by the deceased personality. Cal. Section 3344.1 of the Civil Code (o).
[70] Id
[71] Id
[72] See INTA adopted a Resolution on federal law to advertise http://www.inta.org/index.php?option=com_content&task=view&id=285&Itemid=153&getcontent=3.
[73] Id
[74] Id
About the Author
Mr. Zuber is a partner of Zuber & Taillieu LLP, where he specializes in patent and trademark transactions. He earned a J.D. from Columbia Law School, an M.P.P. from Harvard University, and a B.S. in engineering from Rutgers University, where he graduated with highest honors.
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