California Celebrities Rights Act

The Celebrities Rights Act or Celebrity Rights Act was passed in California in 1985, which enabled a celebrity's personality rights to survive his or her death.[1] Previously, the 1979 Lugosi v. Universal Pictures decision by the California Supreme Court held that Bela Lugosi's personality rights could not pass to his heirs, as a copyright would have. The court ruled that any rights of publicity, and rights to his image, terminated with Lugosi's death.[2]

California Civil Code section 3344[3] is for the publicity rights of living persons, while Civil Code section 3344.1,[4] known as the Astaire Celebrity Image Protection Act, grants statutory post mortem rights to the estate of a "deceased personality", where:

  • that personality had been "any natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death",[5]
  • any person using such personality's "name, voice, signature, photograph or likeness on or in products, merchandise or goods" without prior consent was liable to be sued for damages and profits arising from the unauthorized use,[6] and
  • such prior consent may only be given by persons to whom the personality had transferred such power by contract or trust prior to his death, or by trust or will after his death, or, where no such latter provision was made, his spouse, children, and/or grandchildren,[7] but
  • "a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works, shall not be considered a product, article of merchandise, good, or service if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work."[8]

In 1999, the period of protection was extended from fifty years after a person's death to seventy years.[9] Similar laws have been enacted by 12 other states in the United States.[10]

Cases
  • In 1998 Princess Diana's estate sued the Franklin Mint for selling products bearing her likeness. The lawsuit filed May 18, 1998 in U.S. District Court in Los Angeles said the Franklin Mint "failed to obtain consent to use Princess Diana's identity and trademark ... and embarked on a campaign to profit from Princess Diana's death." On June 27, 2000, the U.S. District Court for the Central District of California issued a summary judgment in favor of the Franklin Mint.[11] Franklin Mint countersued Diana's estate's lawyers for "malicious prosecution of trademark"—in January 2011 the law firm settled with a $25 million payment to the former owners of the Franklin Mint.[12]
  • Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y., 2007) ruled on May 7, 2007 that in regard to Marilyn Monroe, because she died before California's Celebrity Rights Act was passed in 1985, and the state of New York does not recognize a right of publicity after the artist's death, her name, image, and voice are now in the public domain in the states of California and New York. By implication, they would also be in the public domain in any state that, at the time of Monroe's death in 1962, did not recognize a right of publicity that survived the artist's death. In response to that court ruling, California passed legislation that created descendible rights of publicity that last 70 years after death, retroactively for any person deceased after January 1, 1938.[13] A similar law has failed in the New York Legislature.
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References
  1. "Friedemann O'Brien Goldberg & Zarian Names Bela G. Lugosi Of Counsel". Metropolitan News-Enterprise. Retrieved 2008-04-20. But an appeals court overturned that decision and finally in 1979, the California Supreme Court, in Lugosi v. Universal Pictures, ruled that Lugosi did not inherit any rights that Universal Pictures infringed. It said the Lugosi name and likeness could not pass on to the actor’s heirs, since the right of publicity died with Lugosi. However, the California Assembly passed a Celebrities Rights Act in 1985 which said that rights of publicity survive the celebrity’s death and descend to heirs by wills, among other means.
  2. "Who Can Inherit Fame?". Time. July 7, 1980. Retrieved 2007-07-21. Ten years later, the son and the widow of Bela Lugosi, star of the Dracula films, tried to take this doctrine a step further. They argued that this right was essentially property and therefore should pass on to heirs. In a California suit, they asked the courts to stop Universal Pictures from merchandising 70 Dracula products, ranging from jigsaw puzzles to belt buckles, and sought compensation based on the profits. Citing the First Amendment, Universal replied that the design of merchandise is a form of free speech that should not be restrained by anyone's heirs. Besides, said Universal's lawyer, Robert Wilson, Lugosi "attained fame and fortune because the company made and distributed the movies he starred in." After eleven years of wrangling, a trial judge decided in favor of the Lugosis, giving them $70,000 and barring Universal from merchandising Lugosi's likeness.
  3. Cal. Civ. Code §3344
  4. Cal. Civ. Code §3344.1
  5. California Civil Code § 3344.1(h)
  6. California Civil Code § 3344.1(a)(1)
  7. California Civil Code § 3344.1(c)
  8. California Civil Code § 3344.1(a)(2)
  9. "California's amended right of publicity statute (California Civil Code § 3344.1)". Lexology. 2008-03-03. Retrieved 2012-12-02.
  10. "Letter from Memphis". Studio International. 2003-05-30. Retrieved 2012-12-02.
  11. "Too famous to trademark: Diana case proves point -- The National Law Journal, Oct. 16 2000, Section C" (PDF).
  12. "The AmLaw Daily, January 21, 2011".
  13. David Walker, "", PDNonline.

Further reading
  • Peter L. Felcher, and Edward L. Rubin; "The Descendibility of the Right of Publicity: Is There Commercial Life after Death?" The Yale Law Journal, Vol. 89, No. 6 (May, 1980), pp. 1125–1132
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