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Practitioner's Guide to California Right of Publicity Law

 
By Amy Hogue of Pillsbury Winthrop Shaw Pittman LLP

I. LEGISLATION

A. Right of Publicity

California's right of publicity statute, Civil Code Section 3344, was first enacted in 1971 and provides as follows.

California Civil Code Section 3344:

'3344. Use of Another's Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting Without Prior Consent.

(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.

(b) As used in this section, "photograph" means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.

(1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.

(2) If the photograph includes more than one person so identifiable, then the person or persons complaining of the use shall be represented as individuals, rather than solely as members of a definable group represented in the photograph. A definable group includes, but is not limited to, the following examples: a crowd at any sporting event, a crowd in any street or public building, the audience at any theatrical or stage production, a glee club, or a baseball team.

(3) A person or persons shall be considered to be represented as members of a definable group if they are represented in the photograph solely as a result of being present at the time the photograph was taken and have not been singled out as individuals in any manner.

(c) Where a photograph or likeness of an employee of the person using the photograph or likeness appearing in the advertisement or other publication prepared by or in behalf of the user is only incidental, and not essential, to the purpose of the publication in which it appears, there shall arise a rebuttable presumption affecting the burden of producing evidence that the failure to obtain the consent of the employee was not a knowing use of the employee's photograph or likeness.

(d) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).

(e) The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to create a use for which consent is required under subdivision (a).

(f) Nothing in this section shall apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the person's name, voice, signature, photograph, or likeness as prohibited by this section.

(g) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.

(Legislative History: 1971 chapter 1595, 1984 chapter 1704).

B. Descendibility

California's descendibility statute for rights of publicity, Civil Code Section 990, was enacted in 1988 and provides as follows.

California Civil Code Section 990

'990. Deceased Personality's Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting.

(a) Any Person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision (c), shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by the injured party or parties, as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing these profits, the injured party or parties shall be required to present proof only of the gross revenue attributable to the use and the person who violated the section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party or parties in any action under this section shall also be entitled to attorneys fees and costs.

(b) The rights recognized under this section are property rights, freely transferable, in whole or in part, by contract or by means of trust or testamentary documents, whether the transfer occurs before the death of the deceased personality, by the deceased personality or his or her transferees, or, after the death of the deceased personality, by the person or persons in whom the rights vest under this section or the transferees of that person or persons.

(c) The consent required by this section shall be exercisable by the person or persons to whom the right of consent (or portion thereof) has been transferred in accordance with subdivision (b), or if no such transfer has occurred, then by the person or persons to whom the right of consent (or portion thereof) has passed in accordance with subdivision (d).

(d) Subject to subdivisions (b) and (c), after the death of any person, the rights under this section shall belong to the following person or persons and may be exercised on behalf of and for the benefit of all of those persons, by those persons who, in the aggregate, are entitled to more than a one-half interest in the rights.

(1) The entire interest in those rights belong to the surviving spouse of the deceased personality unless there are any surviving children or grandchildren of the deceased personality, in which case one-half of the entire interest in those rights belong to the surviving spouse.

(2) The entire interest in those rights belong to the surviving children of the deceased personality and to the surviving children of any dead child of the deceased personality unless the deceased personality has a surviving spouse, in which case the ownership of a one-half interest in rights is divided among the surviving children and grandchildren.

(3) If there is no surviving spouse, and no surviving children or grandchildren, then the entire interest in those rights belong to the surviving parent or parents of the deceased personality.

(4) The rights of the deceased personality's children and grandchildren are in all cases divided among them and exercisable in the manner provided in Section 240 of the Probate Code according to the number of the deceased personality's children represented; the share of the children of a dead child of a deceased personality can be exercised only by the action of a majority of them.

(e) If any deceased personality does not transfer his or her rights under this section by contract, or by means of a trust or testamentary document, and there are no surviving persons as described in subdivision

(d), then the rights set forth in subdivision (a) shall terminate.

(f) (1) A successor-in-interest to the rights of a deceased personality under this section or a licensee thereof may not recover damages for a use prohibited by this section that occurs before the successor-in-interest or licensee registers a claim of the rights under paragraph (2).

(2) Any person claiming to be a successor-in-interest to the rights of a deceased personality under this section or a licensee thereof may register that claim with the Secretary of State on a form prescribed by the Secretary of State and upon payment of a fee of ten dollars ($10). The form shall be verified and shall include the name and date of death of the deceased personality, the name and address of the claimant, the basis of the claim, and the rights claimed.

(3) Upon receipt and after filing of any document under this section, the Secretary of State may microfilm or reproduce by other techniques any of the filings or documents and destroy the original filing or document. The microfilm or other reproduction of any document under the provision of this section shall be admissible in any court of law. The microfilm or other reproduction of any document may be destroyed by the Secretary of State 50 years after the death of the personality named therein.

(4) Claims registered under this subdivision shall be public records.

(g) No action shall be brought under this section by reason of any use of a deceased personality's name, voice, signature, photograph, or likeness occurring after the expiration of 50 years from the death of the deceased personality.

(h) As used in this section, "deceased personality" means any natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death, whether or not during the lifetime of that natural person the person used his or her name, voice, signature, photograph, or likeness on or in products, merchandise or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods or service. A "deceased personality" shall include, without limitation, any such natural person who has died within 50 years prior to January 1, 1985.

(i) As used in this section, "photograph" means any photograph or photographic reproduction, still or moving, or any video tape of live television transmission, of any person such that the deceased personality is readily identifiable. A deceased personality shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine who the person depicted in the photograph is.

(j) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).

(k) The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing the use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the deceased personality's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a).

(l) Nothing in this section shall apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that the owners or employees had knowledge of the unauthorized use of the deceased personality's name, voice, signature, photograph, or likeness as prohibited by this section.

(m) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.

(n) This section shall not apply to the use of a deceased personality's name, voice, signature, photograph, or likeness, in any of the following instances:

(1) A play, book, magazine, newspaper, musical composition, film, radio or television program, other than an advertisement or commercial announcement not exempt under paragraph (4).

(2) Material that is of political or newsworthy value.

(3) Single and original works of fine art.

(4) An advertisement or commercial announcement for a use permitted by paragraph (1), (2), or (3).

(Legislative History 1984 chapter 1704, 1988 chapter 113).

II. CASE LAW

Substantive decisions on California's statutory and common law rights of publicity are summarized below in reverse chronological order.

Astaire v. Best Film & Video Corp., 1997 WL 336110 (9th Cir. (Cal.), June 20, 1997).

In June 1997, the Ninth Circuit held that a promotional segment in an instructional dance video incorporating footage of Fred Astaire was exempt from liability under Section 990(n)(1).

Fred Astaire's widow, Robyn Astaire, sued Best Film & Video Corporation ("Best"), a New York corporation that manufactures, markets, and distributes pre-recorded videotapes. Mrs. Astaire alleged that Best's use of her late husband's image in a series of dance instructional videotapes violated her statutory right to control the use of her husband's name and likeness under California Civil Code Section 990. Each of Best's videotapes opened with about 90 seconds of footage of Fred Astaire from two of his motion pictures.

The United States District Court, Central District of California, Judge David V. Kenyon, granted summary judgment to Astaire's widow, holding that Best's use of the Astaire film clips violated the "'on or in products, merchandise, or goods'" prong of Section 990(a).

The Ninth Circuit reversed and remanded, holding that Best's use of the Astaire clips was exempt from liability under Section 990(n)(1). Although by its terms, that provision only exempts film and television programs, the court reasoned that pre-recorded videotapes were encompassed in the "film" exemption. The Court concluded that the exemption applied even if Best's use of the Fred Astaire film clips was an advertisement or commercial announcement.

Kareem Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996).

The Ninth Circuit held, in Kareem Abdul-Jabbar, that abandonment is not a viable defense to a right of publicity claim.

Kareem Abdul-Jabbar sued General Motors and its advertising agency for violations of the Lanham Act and his statutory and common law rights of privacy based on an Oldsmobile television commercial that aired during the NCAA basketball tournament. As an NCAA corporate sponsor, Oldsmobile referred, in the format of a trivia quiz, to an NCAA record: Lew Alcindor's selection as Most Outstanding Player in three NCAA tournaments. The United States District Court for the Central District of California, Judge Irving Hill, granted summary judgment to General Motors on the grounds that Abdul-Jabbar had abandoned his rights to the name Lew Alcindor by legally changing his name and refraining from all commercial or other use his birth name. The Ninth Circuit reversed,1 holding that a legal name change is not a defense to Lanham Act ' 43(a) false endorsement or a right of publicity claim:

"We hold that Abdul-Jabbar has alleged sufficient facts to state a claim under both California common law and section 3344. The statute's reference to 'name or likeness' is not limited to present or current use. To the extent GMC's use of the plaintiff's birth name attracted television viewers' attention, GMC gained a commercial advantage." Abdul-Jabbar, 85 F.3d at 415.

After remand, the case settled out of court.

Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790, 40 Cal.Rptr.2d 639 (Ct.App. 1995).

In Montana, the California Court of Appeal affirmed summary judgment against football star Joe Montana's claim that a newspaper's poster reproducing its Super Bowl cover story violated his Section 3344 and common law rights of publicity. Noting that Section 3344(d) does not require consent for use of a "name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign," the court held that 1) the posters represented newsworthy events, and 2) a newspaper has a constitutional right to promote itself by reproducing its new stories.

Newton v. Thomason, 22 F.3d 1455 (9th Cir. 1994).

In Newton, the Ninth Circuit held that naming a dramatic character after a celebrity was not an actionable violation of his right of publicity.

Country music performer and songwriter "Wood Newton" sued television producers Harry Thomason and Linda Bloodworth-Thomason, Burt Reynolds, and Mozark Productions, Inc. alleging damages based on their use of his name for a character in a television series, "Evening Shade." The United States District Court for the Central District of California, Judge James Ideman, granted summary judgment in favor of defendants.

The Ninth Circuit (Circuit Judges Pregerson, O'Scannlain, and Fernandez) affirmed, holding that there was no evidence that Newton's name was used for a commercial purpose, as required for violation of his right of publicity.

Dora v. Frontline Video, Inc., 15 Cal.App.4th 536, 18 Cal.Rptr.2d 790 (Ct.App. 1993).

In this action, the California Court of Appeals affirmed Superior Court Judge David Horowitz' grant of summary judgment against surfer Mickey Dora, who complained that a videotape documentary misappropriated his right of publicity.

In 1987, Frontline Video, Inc. ("Frontline") produced a video documentary, "The Legends of Malibu," a documentary that chronicled the early days of surfing, showing contemporaneous footage of famous surfers, including Mickey Dora.

Arguing that he was never interviewed nor photographed by Frontline and did not consent to any use of his name, photograph, likeness, or voice, Dora sued Frontline for common law and statutory misappropriation of his name and likeness. Superior Court Judge David Horowitz granted summary judgment to Frontline and Dora appealed.

Writing for the California Court of Appeal (Second District), Judge Nott held that Frontline was not required to obtain Dora's consent and affirmed the summary judgment because the documentary contained matters of public interest and "public affairs" exempted from liability under Section 3344(d): "[Surfing] has created a lifestyle that influences speech, behavior, dress, and entertainment, among other things. . . . It would be difficult to conclude that a surfing documentary does not fall within the category of public affairs." Id. at 546.

Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), cert. denied, 506 U.S. 1080 (1993).

In Waits, the Ninth Circuit affirmed a $2.5 million verdict against Frito-Lay and its advertising agency on a voice imitation claim.

Singer Tom Waits sued Frito-Lay claiming false endorsement under the Lanham Act and misappropriation of his voice in a Frito-Lay radio commercial. After trial before Judge James Ideman in the United States District Court (Central District of California), the jury returned a $2.5 million verdict in Waits' favor comprised of $375,000 in compensatory damages, $2 million in punitive damages, and the remainder in attorneys' fees.

The Ninth Circuit affirmed, citing its holding in Midler v. Ford Motor Co., 849 F.2d 460, 463 (9th Cir. 1988): "when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California."

The court also affirmed the $2 million punitive damages award finding that defendants consciously disregarded Waits' right to control his identity. Waits, 978 F.2d at 1105. In affirming the compensatory damage award, the court referred to clear evidence of Waits' outspoken public stance against doing commercial endorsements, his embarrassment when the commercial aired, and the injury to his good will and future publicity value. Id. at 1103-1104.

White v. Samsung, 971 F.2d 1395 (9th Cir. 1992), cert. denied, 113 S.Ct. 2443 (1993).

In White, the Ninth Circuit found triable issues of fact regarding whether game show hostess Vanna White's likeness was misappropriated in Samsung's print advertisement depicting a futuristic robot game show hostess.

White claimed that the robot advertisement, which was one in a series of humorous depictions of life in the future, violated her rights under the California Civil Code, the common law right of publicity, and the Lanham Act. The print advertising campaign hypothesized "outrageous future outcomes" for various aspects of popular culture such as a future depiction of raw steak as "health food" and a future game show featuring robot hostesses rather than human beings. The advertisement showed a feminine robot -dressed in a wig, gown, and jewelry - beside a "Wheel of Fortune"-like game show set with the caption, "Longest-running game show, 2012 A.D." The United States District Court for the Central District of California, Judge Ronald S.W. Lew, granted a summary judgment in favor of Samsung on each claim.

The Ninth Circuit (Circuit Judges Goodwin, Pregerson and Alarcon) reversed, holding that White's common law right of publicity was not limited to appropriation of her "name or likeness," and included any method of invoking an individual's "identity". After remand, the jury awarded damages of $403,000 in response to White's claim of $6 million in compensatory damages. The matter settled without further proceedings.

New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992).

In this decision, the Ninth Circuit found that an opinion survey and a "900" number asking readers to identify the sexiest member of a rock and roll band were not actionable violations of any right of publicity.

New Kids on the Block sued News America Publishing, Inc. (then publisher of "Star") and Gannett Satellite Information Network, Inc. (publisher of "USA Today"), alleging trademark infringement and misappropriation of rights of publicity based on defendants' pay-per-call public opinion polls asking which member of the group was the sexiest or most popular.

On cross motions for summary judgment, the United States District Court, Judge William J. Rea, held that the First Amendment protected the publishers against Lanham Act and right of publicity claims because the polls were related to news-gathering and dissemination of information.

The Ninth Circuit affirmed, holding that the New Kids' right of publicity claims were not actionable because they fell within the exemption under Section 3344(d) for use "in connection with any news, public affairs, or sports broadcast or account."

Joplin Enterprises v. Allen, 795 F. Supp. 349 (W.D. Wash. 1992).

In Joplin, the District Court applied California's Section 990 to hold that a two-act biographical play about deceased vocalist Janis Joplin was not actionable.

Janis Joplin's devisees alleged that the drama was a copyright infringement and misappropriation of Joplin's rights of privacy and publicity. The District Court, Judge Coughenour, concluded that Joplin's estate could not maintain a viable right of publicity claim under California Civil Code '990 because, by its terms, that section applies to "merchandise, advertisements, and endorsements" and exempts any "play," "book," or "musical composition" from liability.

Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), cert. denied sub nom Young Rubican, Inc. v. Midler.

In this 1988 decision, the Ninth Circuit "recognized," a California common law right of publicity proscribing imitations of a professional singer's voice for commercial purposes.

Singer Bette Midler sued Ford Motor Company and its advertising agency based on a television commercial employing a "sound alike" vocalist performing one of Midler's well known hit songs, "Do You Want to Dance." The United States District Court for the Central District of California, Judge Ferdinand F. Fernandez, entered summary judgment in favor of defendants, following a then established line of cases holding voice imitation was not actionable.

The Ninth Circuit (Circuit Judges Hug, Tang, and Noonan) reversed, holding that although Midler could not state a claim for violation of Section 3344 because her actual voice was not used in the commercial, she could nevertheless state a viable claim for violation of her common law right of publicity. Noting that Ford sought "an attribute of Midler's identity" and that "[i]ts value was what the market would have paid for Midler to have sung the commercial in person" Midler, 849 F.2d at 463, the court held as follows:

"We hold only that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California. Midler has made a showing, sufficient to defeat summary judgment, that the defendants here for their own profit in selling their product did appropriate part of her identity." Id. at 463-464.

At trial, Midler was awarded $400,000 in compensatory damages. The judgment was affirmed on appeal.

Eastwood v. Superior Court, 149 Cal.App. 409, 198 Cal.Rptr. 342 (Ct.App. 1983).

This California appellate decision allowed actor Clint Eastwood to state a right of publicity cause of action against The National Enquirer magazine based on a cover story showing Eastwood's photograph above the headline, "Clint Eastwood in Love Triangle with Tanya Tucker." Eastwood, 198 Cal.Rptr. at 344-345.

Eastwood sued The National Enquirer for false light invasion of privacy and for commercial appropriation of name, photograph and likeness under California common law and Civil Code Section 3344. In its April 13, 1982 edition, the Enquirer published a 600-word article about Eastwood's romantic involvement with two other celebrities, singer Tanya Tucker and actress Sondra Locke, featuring Eastwood on the magazine's cover page.

Reversing a demurrer sustained without leave to amend, the Court of Appeal held that Eastwood had stated a viable claim. Without explicit reliance on the Ninth Circuit's decision in Midler v. Ford Motor Company, the court implicitly adopted it by broadly articulating the elements of California's common law right of publicity as follows:

"A common law cause of action for appropriation of name or likeness may be pleaded by alleging (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) the lack of consent; and (4) resulting injury." Id. at. 347.

Groucho Marx Productions, Inc. v. Day and Night Company, Inc., 689 F.2d 317 (2d Cir. 1982).

In this decision preceding the Legislature's 1988 enactment of Civil Code Section 990, the Second Circuit concluded that rights of publicity were not descendible under California common law.

Defendant Day and Night Company produced a Broadway musical "A Day in Hollywood/A Night in the Ukraine." The play, "described by its authors as a 'satiric comment' on Hollywood in the 1930s" included a fanciful depiction of how the Marx Brothers would have dramatized Chekhov's novel The Bear. Although the Marx Brothers were not depicted by name, the script called for three principal performers to reproduce the appearance and comedy style made memorable by Groucho, Chico, and Harpo." Id. at 318-319.

The Marx Brothers' assignees sued for interference with their publicity rights. The United States District Court for the Southern District of New York, Judge William Conner, applied New York law to grant summary judgment to the Marx Brothers' assignees, holding that the right of publicity was descendible. The Second Circuit (Circuit Judges Newman, Pierce and Cannella (sitting by designation)) held that "the descendibility of the Marx Brothers' rights of publicity [was] governed by California law and that . . . such rights either [did] not survive death or at least [did] not entitle the plaintiffs to relief in this case." Id. at 318.2

Cher v. Forum Int'l Ltd., 692 F.2d 634 (9th Cir. 1982), cert. denied, 462 U.S. 1120 (1983).

Actress/celebrity "Cher" sued a tabloid magazine and freelance writer, Fred Robbins, based on a published article billed as an "exclusive" interview with Cher. Cher had given Robbins an interview for a story to be published in Us magazine. At Cher's request, Us declined to publish the article. Robbins eventually sold the interview to Forum International and Star. Based upon the headlines, cover page promotions, and related advertising, Cher alleged breach of contract, unfair competition, misappropriation of name and likeness, misappropriation of her right of publicity, and violations of the Lanham Act.

The United States District Court for the Central District of California, Judge Manuel L. Real, entered judgment in favor of Cher, and the Ninth Circuit affirmed, in part. The Ninth Circuit held, among other things, that Cher was not damaged by Star's allegedly exaggerated "exclusivity" claims and that the First Amendment protected the magazines from Cher's right of publicity claims so long as the publications not published with actual malice.

However, the Ninth Circuit went on to hold that Forum misappropriated Cher's right of publicity by falsely indicating that she had revealed facts to Forum that she would not reveal to a rival magazine, and by falsely indicating that she endorsed the magazine. The Ninth Circuit affirmed an award of $100,000 in special damages, $69,000 in general damages, and $100,000 in punitive damages. Cher, 692 F.2d at 640.

Clark v. Celeb Publishing, Inc., 530 F. Supp. 979 (S.D.N.Y. 1981).

In this action applying California law, the District Court awarded $25,000 in emotional distress damages based on an unauthorized publication of Linda Clark's photographs in Celeb Magazine. Clark, a self-employed professional model and actress, sued Celeb Publishing, Inc. for invasion of privacy and unauthorized use of her photographs that appeared "in a broad range of advertisements, as well as in Forum and Penthouse Magazine . . . ."

Noting that Clark resided in California and suffered her alleged injuries in California, District Judge Motley of the United States District Court for the Southern District of New York applied California law, rather than New York law. Judge Motley awarded $25,000 in damages for mental anguish resulting from the unauthorized publication of photographs in what was characterized as a low quality and very explicit pornographic magazine. He also awarded $6,750 in lost compensation, and a $7,000 license fee for the unauthorized use of her photographs.

Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979).

In this decision preceding (and precipitating) the Legislature's enactment of Section 990, the California Supreme Court held that rights of publicity were not descendible in California.

Bela Lugosi's heirs, Hope Linninger Lugosi and Bela George Lugosi, sued to enjoin and recover profits from Universal Pictures for licensing Lugosi's name and image on merchandise reprising Lugosi's title role in the 1930 film, "Dracula."

The California Supreme Court faced the question whether Bela Lugosi's film contracts with Universal included a grant of merchandising rights in his portrayal of Count Dracula, and the descendibility of any such rights. Adopting the opinion of Justice Roth for the Court of Appeal, Second Appellate District, the court held that the right to exploit one's name and likeness is personal to the artist and must be exercised, if at all, by him during his lifetime. Lugosi, 603 P.2d at 431.

Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 160 Cal.Rptr. 352, 603 P.2d 454 (Cal. 1979).

In this companion decision to Lugosi, the California Supreme Court concluded that rights of publicity were not descendible under California law. The plaintiff, Rudolph Valentino's nephew and legal heir, filed suit seeking damages and injunctive relief claiming that defendant Spelling-Goldberg Productions misappropriated Valentino's right of publicity by producing a biographical film.

Superior Court Judge AugustJ. Goebel dismissed Guglielmi's complaint. The Court of Appeal (Second District) affirmed, noting that because Valentino had not exploited his name and likeness during his lifetime, his name and likeness could be used by others without liability to his heirs for such use irrespective of the nature of the use. Guglielmi v. Spelling, 73 Cal.App.3d 436, 140 Cal.Rptr. 775 (Ct.App. 1977). Citing its decision in Lugosiv. Universal Pictures, 603 P.2d 425, 431 (Cal. 1979) (holding that rights of publicity expired upon death), the California Supreme Court affirmed the dismissal.

Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974).

In Motschenbacher, the Ninth Circuit held that a photograph depicting distinctive aspects of a race car driver's car was an actionable misappropriation of the driver's identity under California law.

Lothar Motschenbacher, a professional race car driver, sued R.J. Reynolds Tobacco Co. and the William Esty Company for injunctive relief and damages, alleging misappropriation of his name, likeness, and personality in a television commercial. The commercial "utilized a 'stock' color photograph depicting several racing cars on a racetrack. Plaintiff's car appear[ed] in the foreground, and although Plaintiff is the driver, his facial features [were] not visible." Motschenbacher, 498 F.2d at 822.

The United States District Court for the Central District of California, Judge Manuel L. Real, granted summary judgment in favor of the Defendants who had altered the photograph by changing the numbers on all racing cars depicted, transforming Motschenbacher's number '11' into '71' . . . attaching a "wire-like device known as a 'spoiler' to plaintiff's car, . . . [and] add[ing] the word 'Winston', the name of their product, to that spoiler . . ." Id.

The Ninth Circuit (Circuit Judges Koelsch, Hufstedler, and Trask) reversed, holding that California courts would afford legal protection to an individual's proprietary interest in his own identity. According to the Court, the fact that Motschenbacher's "likeness" was unrecognizable in the commercial and that R.J. Reynolds had changed the number of Motschenbacher's racing car from "11" to "71" and added a "spoiler" to the car did not preclude a finding that Motschenbacher was identifiable as the plaintiff in view of automobile's distinctive markings: white pinstriping, oval medallion, and red color.

Endnotes

1 Presiding over this appeal were Judges T.G. Nelson and Kleinfeld, Circuit Judges, and Charles Legge, District Judge, sitting by designation.[back ^]

2The court concluded that the Plaintiffs could not prevail: "Obviously, if no right of publicity survives death, the plaintiffs have no rights after the deaths of the Marx Brothers. Even if there is a limited descendible right, applicable to a product or service promoted by the celebrity, the defendants are not using the names or likenesses of the Marx Brothers in connection with any product or service that the comedians promoted during their lives. Since California law would recognize, at most, a descendible right of publicity only in connection with particular commercial situations - products and services - that a celebrity promoted during his lifetime, we conclude that California would not recognize a descendible right of publicity that protects against an original play using a celebrity's likeness and comedic style." Marx, 689 F.2d at 323.[back ^]






© 1998  Pillsbury Winthrop Shaw Pittman LLP