California’s Right of Publicity – Bestowing Property Upon the Dead?
January 8, 2008
Anthony R. "Tony" Masiello- Washington
California recently has resurrected the rights of Marilyn Monroe and other celebrities who have been deceased for decades.
When Monroe died in 1962, she might have wanted to pass on to her friends and family the right to make commercial use of her name, her image and her iconic persona. It would have been a valuable gift. However, her will made no mention of it; and under the laws of the relevant states (California and New York), her right of publicity – the right to control the commercial exploitation of her identity – would die with her, regardless of what her will said.
Decades later, California enacted the Astaire Celebrity Image Protection Act (Cal. Civ. Code Section 3344.1) to recognize the posthumous right of publicity, making it a property right that could be passed down through a will, through other legal transfers and through intestacy; and creating a cause of action for infringing acts committed in California. It became effective as of January 1, 1985. New York still has never recognized such a posthumous right.
In 2007, two cases regarding Monroe’s right of publicity resulted in partial summary judgments, finding that no such posthumous right had passed down to persons making a claim through Lee Strasberg, the beneficiary under the residuary clause of Monroe’s will. In a New York decision in Shaw Family Archives Ltd. v. CMG Worldwide, Inc., and a California decision in The Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., the federal courts held that no posthumous right of publicity existed at the time of Monroe’s death, and that she could not pass on, through her will, a property right that did not exist. The California court, construing the Astaire Act, indicated that a posthumous right of publicity sprang up in 1985, but it was not bestowed on the deceased Monroe and therefore could not have descended through her will. Rather, in the court’s view, the Astaire Act bestowed the posthumous right of publicity on Monroe’s natural heirs (such as surviving spouse, children, grandchildren, or parents).
The California legislature sought to expressly “abrogate” the summary judgment orders in the Greene Archives and Shaw Family Archives cases by amending the Astaire Act in a bill signed by Governor Arnold Schwarzenegger on October 10, 2007. Under the new law, the posthumous rights recognized under the Astaire Act “are expressly made retroactive, including to those deceased personalities who died before January 1, 1985”; and are “freely transferable or descendible … by contract or by means of any trust or any other testamentary instrument, executed before or after January 1, 1985.” To expressly address the courts’ queasiness about property posthumously bestowed upon the dead, the new law states, “The rights recognized under this section shall be deemed to have existed at the time of death of any deceased person who died prior to January 1, 1985.” And to expressly address the claimants to Ms. Monroe’s rights through Lee Strasberg, the new law provides that such rights, if not mentioned in a will, will descend by operation of the will’s residuary clause. The rights under the Astaire Act are not perpetual; they expire 70 years after the deceased personality’s death.
The right of publicity, or the right to control the commercial exploitation of one’s name, image, voice and other elements of one’s personality, is available not only to celebrities but to everyone. However, only 28 of the 50 states recognize a common law or statutory right of publicity among the living, and fewer recognize such a right surviving death. The right of publicity, to the extent it exists, is closely related to the right of privacy, and for non-celebrities its primary purpose may be to protect against undue invasion of privacy for commercial purposes.
Trademark laws provide an opportunity for perpetual protection of a name or image, and some celebrities’ successors have made use of this avenue to extend exclusive commercial exploitation rights beyond those available under the right of publicity. Unlike the right of publicity, trademark rights arise from active commercial exploitation of the name or image as a trademark, and they can disappear when such use is discontinued. They are also typically limited to the specific fields of business in which the trademark owner is active, whereas the right of publicity applies to virtually all fields of commercial use.
For more information, email Anthony R. Masiello at anthony.masiello@hklaw.com or call toll free, 1-888-688-8500.