BILL ANALYSIS
SB 771
Page 1
SENATE THIRD READING
SB 771 (Kuehl)
As Amended August 30, 2007
Majority vote
SENATE VOTE :Vote note relevant
JUDICIARY 10-0
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|Ayes:|Jones, Tran, Adams, | | |
| |Evans, Feuer, Keene, | | |
| |Krekorian, Laird, Levine, | | |
| |Lieber | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Protects the publicity rights of celebrities who died
before January 1, 1985. Specifically, this bill :
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/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)Reiterates that nothing in #1) shall be construed to render
invalid or unenforceable any contract entered into by the
deceased personality, during his or her lifetime, by which the
personality assigned rights to use his or her name, voice,
signature, photograph or likeliness, regardless of whether the
contract was entered before or after January 1, 1985.
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4)Provides that, notwithstanding any provision to the contrary,
if an action was taken, prior to May 1, 2007, to exercise
post-mortem publicity rights by a statutory heir, as defined,
and such action was not challenged successfully in court by a
residuary beneficiary, the post-mortem publicity rights vest,
for both past and future purposes, solely in the statutory
heirs, as defined.
5)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.
2)Provides that, notwithstanding #1) above, no consent is
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.
FISCAL EFFECT : None
COMMENTS : Effective in 1985, the California Legislature enacted
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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
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 two recent court cases involved the commercial use of images
of Marilyn Monroe, who died in 1962. The court in 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), 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/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. While ruling against Ms. Monroe's residuary
beneficiaries, the court wrote:
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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,
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 court, in Shaw Family Archives Ltd. v. CMG
Worldwide, Inc. , 05 Civ. 3939 (United States District Court,
Southern District of New York, May 2, 2007), also arrived at the
same conclusion.
This bill expressly abrogates the two 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. This 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. This 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. This
explicit language is not a change to existing law, but, rather,
only clarifies it in order to prevent needless litigation. This
bill explicitly states that the rights recognized for deceased
personalities are made retroactive, including to those deceased
personalities who died before January 1, 1985.
This bill also creates a limited exception to the general rule
that, in the absence of an express transfer of these publicity
rights, a provision in a testamentary instrument disposing of
the residue of the deceased personality's assets shall be
effective to transfer post-mortem publicity rights. Under the
limited exception, if an action was taken, prior to May 1, 2007,
to exercise post-mortem publicity rights by a statutory heir,
who has not disinherited by the deceased celebrity, and such
action was not challenged successfully in court by a residuary
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beneficiary, the post-mortem publicity rights vest, for both
past and future purposes, solely in the statutory heirs.
In support of this bill, the California Labor Federation writes:
"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."
Opponents, including the parties that won the cases discussed
above, write that the bill "abandons the express purposes of
3344.1, effects an unlawful taking of property, violates due
process, unconstitutionally impairs existing contracts of not
only photographers but also studios and other businesses." They
argue that, despite the fact that this bill simply seeks to
clarify existing law, it is an unconstitutional ex post facto
law. They also argue that, depending to whom a celebrity left
the bulk of his/her estate through the residuary clause, this
bill could strip statutory heirs of the rights of publicity of
their deceased relatives.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334 FN: 0002633