BILL ANALYSIS
SB 771
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Date of Hearing: July 10, 2007
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 771 (Kuehl) - As Amended: June 28, 2007
SENATE VOTE : Not Relevant
SUBJECT: Deceased celebrities: RIGHT OF PUBLICITY
KEY ISSUE : SHOULD THE LAW BE CLARIFIED TO MAKE EXPLICIT THAT
THE POST-MORTEM RIGHT OF PUBLICITY ESTABLISHED BY THE
LEGISLATURE IN 1985 APPLIES TO ALL CELEBRITIES REGARDLESS
WHETHER THEY DIED BEFORE OR AFTER 1985?
SYNOPSIS
This bill, sponsored by the Screen Actor's Guild, seeks to
clarify California's right of publicity for deceased
celebrities. Effective in 1985, California enacted legislation
to provide for a posthumous right of publicity that is
transferable by contract, trust or testamentary instrument and,
if not so transferred, enforceable by a statutory list of heirs.
This past May, two federal courts - one in California and one
in New York - held the law does not permit publicity rights to
pass to the beneficiaries under a deceased celebrity's will if
that celebrity died before January 1, 1985 - the effective date
of the statute. Only the statutorily listed heirs have those
rights. This bill, sponsored by the Screen Actor's Guild,
abrogates those two recent court decisions directly by
clarifying that a deceased celebrity's publicity rights apply to
individuals who died before January 1, 1985.
Supporters believe that this bill is necessary to reaffirm
"California's protection of post-mortem publicity rights for
deceased California celebrities and artists" and to ensure the
charitable works by foundations funded by post-mortem publicity
rights can continue. Supporters include the Cecil B. DeMille
Foundation, the Marilyn Monroe LLC, the Motion Picture and
Television Fund, [John] Wayne Enterprises and the California
Labor Federation.
SUMMARY : Protects the publicity rights of celebrities who died
before January 1, 1985. Specifically, this bill :
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1)Clarifies that the property right to use a deceased
personality's name, voice, signature, photograph or likeness
in a commercial product is freely descendible by means of
trust or any other testamentary instrument executed before or
after January 1, 1985. Specifies that these rights shall be
deemed to have existed at the time of death of any person who
died prior to January 1, 1985, and shall vest in the persons
entitled to those property rights under the testamentary
instrument of the deceased personality effective as of the
date of his or her death. In the absence of an express
transfer of these publicity rights, provides that a provision
in the testamentary instrument disposing of the residue of the
deceased personality's assets shall be effective to transfer
them.
2)Specifies that the rights recognized for deceased
personalities are expressly made retroactive, including to
deceased personalities who died before January 1, 1985.
3)States the intent of the Legislature to abrogate court
decisions in The Milton H. Greene Archives, Inc. v. CMG
Worldwide, Inc. (United States District Court, Central
District of California) and Shaw Family Archives Ltd. v. CMG
Worldwide, Inc. (United States District Court, Southern
District of New York), both of which found that post-mortem
publicity rights under California law do not apply to
personalities who had died prior to January 1, 1985.
EXISTING LAW :
1)Imposes liability on any person who uses a deceased
celebrity's name, voice, signature, photograph or likeness,
without consent, on or in products, merchandise or goods, or
for purposes of advertising or selling, or soliciting
purchases of, products, merchandise, goods, or services for 70
years after the death of the celebrity. Provides that the
right to consent is a property right that is freely
transferable by contract, trust or testamentary document.
Provides that consent is exercisable by those persons to whom
the right is transferred or, if no such person exists, by the
surviving spouse or other specifically listed heirs. (Civil
Code Section 3344.1. All further statutory references are to
that code, unless stated otherwise.)
2)Provides that, notwithstanding (1), above, no consent is
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required for the use of a deceased personality's name, voice,
signature, photograph or likeness in a play, book, magazine,
newspaper, musical composition, film, radio or television
program, in material that is of political or newsworthy value,
a single and original work of fine art, or an advertisement or
commercial announcement for any of these uses. 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, does not constitute a use for which
consent is required. (Section 3344.1.)
3)Creates a right to publicity, imposing liability on any person
who knowingly uses another's name, voice, signature,
photograph, or likeness of a living personality, in any
manner, on or in products, merchandise, or goods, or for
purpose of advertising or selling, or soliciting purchases of,
products, merchandise, goods or services, without such
person's prior consent. Use 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. (Section 3344.)
4)Held that, under California law, no post-mortem right of
publicity existed before 1985 and a celebrity who died before
then could not transfer by testamentary instrument property
that did not yet exist. Only statutorily listed heirs (a
surviving spouse, children, grandchildren or parents), if
alive, can exercise such rights. ( The Milton H. Greene
Archives, Inc. v. CMG Worldwide, Inc. , CV 05-2200 MMM (United
States District Court, Central District of California, May 14,
2007); Shaw Family Archives Ltd. v. CMG Worldwide, Inc. , 05
Civ. 3939 (United States District Court, Southern District of
New York, May 2, 2007).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : Effective in 1985, the California Legislature enacted
legislation to provide for a posthumous right of publicity that
is transferable 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
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1998 to abrogate a court decision which held that the
unauthorized use of Fred Astaire's image in a dance video was
not prohibited by the statute. The 1998 legislation
distinguished between the permissible use of a celebrity's
likeness in works of art or entertainment and use in connection
with products, goods and merchandise which is prohibited without
consent. The 1998 amendment also extended the period of
protection 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. Only statutorily
listed heirs, which are a surviving spouse, children,
grandchildren or parents of the deceased personality, could
enforce the publicity rights. This bill, sponsored by the
Screen Actor's Guild, abrogates those two recent court decisions
directly by clarifying that a deceased celebrity's right of
publicity applies to individuals who died before January 1,
1985.
The author believes that this bill is necessary to reaffirm
"California's protection of post-mortem publicity rights for
deceased California celebrities and artists by abrogating two
recent court decisions which declared that California law does
not permit publicity rights to pass to the beneficiaries under a
deceased celebrity's will if that celebrity died before January
1, 1985. It is important to note that the court, in one of the
decisions, expressed reluctance about its ruling. The court
invited the Legislature to clarify whether the law regarding the
right of publicity applies equally to all celebrities, whether
or not their death preceded the effective date of the law. SB
771 follows the court's invitation and clarifies that a deceased
celebrity's right of publicity applies to individuals who died
before January 1, 1985."
In support of this bill, the Screen Actors Guild writes:
"Existing California Law maintains that there is a cause for
recourse and damages with the unauthorized use of a deceased
personalities' likeness. In recent years, it has become
increasingly important to protect these rights in the fact of
increasing avenues of commercial exploitation, while still
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taking care to not hamper the creative process. The passage of
SB 771 will help to protect these public figures while still
allowing for creative expression."
Statutory descendible right to publicity were first recognized
by the Legislature in 1985 and then expanded and clarified in
1998 . The law of privacy comprises four distinct kinds of
invasion of four different interests: intrusion upon the
plaintiff's seclusion or solitude, public disclosure of private
facts about the plaintiff's personal life, publicity that places
the plaintiff in a false light in the public eye, and
appropriation of the plaintiff's name or likeness for commercial
purposes. These common law rights inure only to the benefit of
a living person.
In 1984, SB 613 (Campbell), Chap. 1704, Stats. 1984, created an
exception to the general rule that privacy rights end with an
individual's death. This was done solely for the right to
publicity, and is enunciated in Civil Code section 3344.1. The
1984 legislation stemmed from two California Supreme Court
cases, Lugosi v. Universal Pictures (1979) 25 Cal.3d 813 and
Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d
860, which found that California's statutory right to publicity
was not transferable upon death, such that the heirs of deceased
celebrities had no statutory protections at all. That bill
created a statutory descendible right to publicity, which was
similar, though not identical to, the right to publicity for
living celebrities.
Despite that legislation, Mrs. Fred Astaire lost a difficult and
expensive lawsuit over the unauthorized use of her husband Fred
Astaire's image in a "how to" dance video based on the then
statutory scheme, which set forth a list of uses of celebrity
images that did not require consent. ( Astaire v. Best Film &
Video , 116 F.3d 1297 (9th Cir. 1997), as amended by 136 F.3d
1208 (9th Cir. 1998).) In response to that case, Mrs. Astaire
and the Screen Actors Guild sponsored legislation to clarify and
expand the post-mortem right of publicity. That bill, SB 209
(Burton, Chap. 998, Stats. 1999), eliminated the list of
exemptions for deceased celebrities, and thereby substantially
expanded the types of uses for which consent of the celebrity's
heirs is required. That bill also extended the descendible
right to publicity from 50 to 70 years after the death of the
celebrity.
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Two federal district courts limit application of the
California's statutory scheme to protect the publicity rights of
deceased celebrities . The genesis of this bill is two very
recent federal court cases that invalidated testamentary
transfers of the post-mortem publicity rights for celebrities
who died before 1985. Both cases involved the commercial use of
images of Marilyn Monroe, who died in 1962. Her will, which did
not specifically mention rights to publicity, left the residuary
of her estate to Dr. Marianne Kris (25 percent) and Lee
Strasberg (the remaining balance). Mr. Strasberg's surviving
spouse, Anna Strasberg, formed the Marilyn Monroe LLC to manage
the assets from the will. Marilyn Monroe does not have any
living heirs identified in the statute who could enforce her
publicity rights (e.g., spouse, children, grandchildren,
parents).
The California case, The Milton H. Greene Archives, Inc. v. CMG
Worldwide, Inc. , CV 05-2200 MMM (United States District Court,
Central District of California, May 14, 2007), involved the
marketing of photographs and products containing Marilyn
Monroe's image. The court ruled that the statutory post-mortem
rights to publicity established in 1985 could not have been
transferred by a testamentary instrument in 1962. In reaching
its decision, the court relied on the general probate rule that
a testator may only transfer property that he or she owns at the
time of death to hold that Ms. Monroe could not have passed such
rights through the residuary clause of her will. A mere
expectance that the law might change and provide for a
posthumous right of publicity was not sufficient, said the
court, to transfer rights that did not exist until years later.
Thus, because Ms. Monroe died before enactment of the statute,
the court held that her publicity rights could not pass to her
chosen beneficiaries. Since her statutorily prescribed heirs
were not alive, the court held that Marilyn Monroe's rights of
publicity died with her.
While ruling against Ms. Monroe's residuary beneficiaries, the
court wrote:
The court reaches this conclusion with some reluctance
because . . . at least some personalities who died
before passage of the California . . . right of
publicity statute[] left their residuary estates to
charities, which will be "divested" of those rights
under the court's holding. As noted, however,
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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 or
their successors-in-interest.
The New York case, Shaw Family Archives Ltd. v. CMG Worldwide,
Inc. , 05 Civ. 3939 (United States District Court, Southern
District of New York, May 2, 2007), involved the sale of
T-shirts with Marilyn Monroe's picture at Target stores and
internet sales of various other items also containing Ms.
Monroe's image. Similar to the California court, the New York
court found that Ms. Monroe could not devise, through her will,
property rights she did not own at the time of her death. Since
post-mortem publicity rights did not exist in California until
1985, Ms. Monroe could not have transferred them through her
will.
This bill would abrogate the two court cases and explicitly make
the posthumous right of publicity retroactive . The bill
expressly abrogates the two recent court decisions, and,
following the invitation from the California federal court,
explicitly states instead that a deceased celebrity's right of
publicity applies to individuals regardless of whether they died
before or after January 1, 1985. The bill clarifies that the
right to the use of a deceased personality's name, voice,
signature, photograph or likeness in a commercial product is
freely descendible by means of trust or any other testamentary
instrument executed before or after January 1, 1985. These
rights are deemed to have existed at the time of death of any
person who died prior to January 1, 1985, and vest in the
persons entitled to these property rights under the testamentary
instrument of the deceased personality. The bill provides that,
in the absence of an express transfer of these rights, a
provision in the will or other testamentary instrument that
provides for the disposition of the residue of the deceased
personality's assets is effective to transfer them.
The bill makes clear that regardless of when an individual dies,
his or her heirs and beneficiaries may, for 70 years from the
date of death, control the use of his or her image for
commercial purposes. The bill explicitly states that the rights
recognized for deceased personalities are made retroactive,
including to those deceased personalities who died before
January 1, 1985.
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This bill also clarifies that unless the testamentary instrument
contains an express disposition of publicity rights, those
rights will be transferred to the residuary beneficiaries. This
explicit language is not a change to existing law, but, rather,
only clarifies it in order to prevent needless litigation.
Moreover, this clarification is consistent with one of the main
purposes of residuary clauses - to dispose of property not
specifically given to other beneficiaries. It is also
consistent with the way most testamentary instruments, which
leave the bulk of the testator's estate to his or her remainder
beneficiaries, are drafted. Thus, under this bill, the Marilyn
Monroe LLC would retain the right to consent to use of her image
in commercial products until 2032 - 70 years after her death.
Other states have similar protections for post-mortem publicity
rights . More than a dozen other states, including Florida,
Pennsylvania, Virginia and Washington, also have laws to protect
the publicity rights of deceased celebrities. In addition,
bills are pending in the New York Legislature to create such a
right. Likely in response to the recent cases, the New York
legislation, as currently drafted, specifically applies
regardless of whether the celebrity died before or after the
enactment date of that proposed law. The New York bills,
however, are much broader than California's law, including,
among other things, not sunsetting 70 years after death, and are
now stalled in committee.
ARGUMENTS IN SUPPORT : In support of this bill, the Marilyn
Monroe LLC writes ""This bill would effectuate the Legislature's
intent to protect these publicity rights by clarifying that they
are transferable regardless of whether the personality died
before or after January 1, 1985. The Marilyn Monroe, LLC has
carefully guarded the publicity rights of Marilyn Monroe's image
in order to maintain her legacy as she intended. . . . However,
due to recent court decisions, Ms. Monroe's publicity rights
could be released into the public domain only to result in
offensive and exploitive uses of her image."
Writes the California Labor Federation: "SB 771 is critical to
protect celebrities and artists from constant attempts to
commercially exploit their images. The honorable legends of
these admirable personalities may be corrupted in the event that
SB 771 is not enacted, as their images will be used for
offensive commercial purposes. The California Legislature
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originally intended that a person's publicity rights be
transferable according to his or her intent regardless of
whether he or she died before 1985."
John Wayne's son, president of Wayne Enterprises, writes that
the use of John Wayne's name and likeness enables them to
support the John Wayne Cancer Foundation and the John Wayne
Cancer Institute. In addition, "[l]egislative protections
regarding rights of publicity assist us in assuring that the use
of John Wayne's personality is meaningful and appropriate.
The Motion Picture and Television Fund, which offers a continuum
of care for the very young to the elderly by providing health
care services, child care, residential living and care for older
adults, as well as social and charitable services, support the
bill because it holds a share of the publicity rights for
several prominent celebrities who died before 1985, including
Joan Crawford, Mae West and Edith Head. "Unless the Legislature
reaffirms California's protection for postmortem publicity
rights for all celebrities who died before January 1, 1985, we
are extremely concerned that the rights we have held for many
years might be lost."
Prior Legislation : SB 209 (Burton), Chap. 998, Stats. 1999; SB
613 (Campbell), Chap. 1704, Stats. 1984.
REGISTERED SUPPORT / OPPOSITION :
Support
Screen Actors Guild (sponsor)
Batjac Productions, Inc.
California Labor Federation
Cecil B. DeMille Foundation
Motion Picture and Television Fund
Wayne Enterprises
Several individuals
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
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