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May 13, 2010

California to extend postmortem right of publicity to persons who became famous because of their deaths

By Marie-Andree Weiss

A California bill, soon to be enacted, should be watched by New York attorneys interested in postmortem right of publicity.

California AB 585

California Assembly Bill 585 has been unanimously approved by both the California Assembly and Senate. It is currently awaiting signature by the Governor.


The bill will amend Section 3344.1 of the California Civil Code, relating to deceased personalities, and will extend descendible postmortem right of publicity to people who, albeit unknown during their lifetimes, became "personalities" because of their deaths.

AB 585 has been sponsored by Assemblyman Paul Cook, who introduced this bill because he wanted to prevent the names and likenesses of deceased soldiers from being used by anti-war protestors, some of them selling t-shirts, buttons, and posters using the names and/or pictures of soldiers who died in the line of duty.

California law already recognizes a descendible postmortem right of publicity

California law has recognized a descendible postmortem right of publicity since January 1, 1985 (California Civil Code § 3344.1). This postmortem right of publicity is a descendible property right, and it vests in the persons entitled to these property rights under the testamentary instrument of the deceased.

However, only deceased "personalities" have that right. A personality is defined by the California law as any natural person whose name, voice, photograph, or likeness had commercial value at the time of her death. The term of these postmortem rights is 70 years since the passing in 1999 of "The Astaire Celebrity Image Protection Act."

In 2007, California passed legislation which amended §3344.1 of the California Civil Code: postmortem rights are now deemed to have existed at the time of death of any "personality" who died prior to January 1, 1985, and vest in the persons entitled to these rights under the testamentary instrument of the deceased personality.

However, for those who are not "personalities," the right of publicity still lasts only for their lifetime.

New York does not yet recognize a postmortem right of publicity

New York does not recognize any common law right of publicity, and its statutory publicity rights, New York Civil Rights Law §§ 50, 51, applies only to living persons, whether famous or unknown. New York does not however recognize a postmortem right of publicity.

In 2007, the S.D.N.Y. ruled that Marilyn Monroe could not have passed any postmortem right of publicity through the residuary clause in her will, because she did not own any post mortem right of publicity at the time of her death in 1962, since such rights were not recognized yet in 1962, Shaw Family Archives Ltd v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y. 2007).

This S.D.N.Y. decision led to the introduction of a bill, A08836 to amend New York Civil Rights Law §§ 50, 51, in order to provide a postmortem right of publicity to personalities. It was never enacted.

A similar bill, S05066, was introduced in April 2009. It would have given personalities a descendible postmortem right of publicity, and the terms of this right would have been 25 years after the personality's death, a considerably shorter period of time than the 70 years of protection under California law. This bill was also not enacted.

S06790 was introduced by New York State Senators Sampson, Golden, and Adams in February 2010. This bill would add a new §5-f to the New York Civil Rights Law, and would give personalities descendible rights of publicity for 70 years after her death. Section 12 of the bill provides that "these rights are expressly made retroactive, and shall be deemed to have existed at the time of death of any deceased personality who died within seventy years prior to the effective date of this section, and, except where such rights were passed or assigned prior to such deceased personality's death by means of any contract or trust instrument."

Yet only personalities would be given this right.

California AB 585 extends postmortem right of publicity to persons who became famous because of their death

California law, just as New York law, recognizes a right of publicity to everyone during his or her lifetime, but does not, at least for a few more days, protect the postmortem right of publicity of people who were not famous during their lifetime. California AB 585 defines a deceased personality as "any natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death, or because of his or her death."

Curiously, or rather, sadly, some persons only become famous by the way they die. One remembers the tragic death of a Florida SeaWorld trainer last February. Unknown during her lifetime, she became instantly famous because of the way she died, killed by a whale in front of visitors.

Post mortem right of publicity or post mortem right of privacy?

U.S. soldiers are still dying every day in Iraq and in Afghanistan. In order to protect the feelings of the families of fallen soldiers, AB 585 curiously now gives them a property right over the images of their loved ones, for 70 years after the death. Extending the right of privacy after death would have been as efficient to prevent unauthorized uses of photographs. Instead of extending California right of publicity, shouldn't the bill have rather extended the right to privacy after death?

U.S. law does not recognize a right of privacy after death, but in one of the first U.S. privacy cases, the Georgia Supreme Court wrote in dicta in 1905 that "while the right of privacy is personal, and may die with the person, we do not desire to be understood as assenting to the proposition that the relatives of the deceased cannot, in a proper case, protect the memory of their kinsman, not only from defamation, but also from an invasion into the affairs of his private life after his death." Pavesich v. New England Life Ins. Co, 122 Ga. 190, 210.

Post-mortem right of publicity and First Amendment

California Assemblyman Paul Cook writes on his site: "While the protestors have the right to free speech, they should not be able to use the names, likenesses, or other characteristics of deceased service members without the consent of relatives."

This statement recognizes the tension between the First Amendment and the right of publicity. In concurring to Martin Luther Jr. Center v. Am. Heritage Prod., 296 SE 2d 697 (Ga. Supreme Court 1982), Justice Welter wrote that by "proclaiming this new "right of publicity," we have created an open-ended and ill-defined force which jeopardizes a right of unquestioned authenticity -- free speech."

AB 585 was specifically drafted to prevent political speech. True, the bill does not prevent the use of the fallen soldiers' images for news purposes. "Newsworthiness" is a defense to liability for misappropriation of right of privacy, and this defense extends to the use of names, likeness or facts in giving information to the public for purposes of education, amusement, or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is published." Solano v. Playgirl Inc., 292 F.3d 1078 (9th Circ. 2002).

Doesn't the public have a reasonable right to be reminded about the deaths of U.S. soldiers? Isn't recognizing that they were people, with families and friends, and not mere casualties, heard on the news and soon forgotten, a legitimate interest?

May 19, 2010

Taking a Sack: The NFL and Its Undeserved Tax-Exempt Status

Andrew B. Delaney

Though football teams and NFL-licensing entities are for-profit enterprises, the overseeing body is considered nonprofit. As such, it doesn't pay federal taxes. I also found out recently that the NFL doesn't pay New York state taxes either. It gets several million dollars from each of its 32 teams in the form of "dues and assessments"-- those are tax write-offs for the teams and tax-free income for the NFL. It's a pretty interesting little setup.

The NFL's stadium loan program is even more interesting. Under the G3 program, the NFL provides "loans"--and the quotes are indeed there for sarcasm--to teams that have entered into public-private partnerships with their home cities to build new stadiums. What is often touted as a "generous contribution" from the team is a mixture of financing structures that leaves very little coming from the team owner's pocket.

I have argued in an article that the NFL's abuse of its tax-exempt status requires that the NFL make the switch to for-profit status, as the MLB recently did. I did my best to make the piece amusing and lively. It's a work in progress, so suggestions are much appreciated. A full version of the article can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1605281.


May 20, 2010

EASL Spring Meeting - Popcorn and Ethics Program Summary

By Monica Pa

The Spring Meeting for NYSBA occurred on May 7th at the Concierge Conference Center in New York City. There was a general introduction by Judith Prowda, the Section Chair, and Tracey Meyer, the program Co-Chair. We then launched into the ethics presentation “Popcorn & Ethics”, presented by Mark J. Solomon, The Boardman House, Ithaca.

Mark covered several new developments in the New York Rules of Professional Conduct.

(1) The Biggest New Change to the Rules: Under the new Rule 3.3(b), attorneys have an affirmative obligation to reveal a client misrepresentation to a tribunal

Lawyers are ethically obligated to represent their clients competently and diligently, and to preserve their confidential information. But lawyers, as officers of the court, are also ethically and professionally obligated not to assist their clients in perpetrating fraud on tribunals or testifying falsely. Under the prior Rule 3.3, if an attorney learns that his or her client made a misrepresentation, the attorney was obligated to remonstrate with the client, but he or she could not reveal the misrepresentation if the information was a client confidence (and basically all information between a lawyer and client is confidential).

Effective April 1, 2009, Rule 3.3 forbids a lawyer from offering or using knowingly false evidence before a tribunal, and requires a lawyer to take reasonable remedial measures upon learning that the client provided false testimony. A lawyer who knows that the client will lie/is lying/or HAS lied before a tribunal, shall take “reasonable remedial measures” including, if necessary, disclosure to the tribunal. Note that “tribunal” is broadly defined and includes governmental and administrative agencies, not simply a court. An attorney has an obligation to notify his or her client prior to the client’s appearance before the tribunal if the attorney knows or has reason to suspect that the client intends to provide false testimony.

To make clear that the old rule was repudiated, the current rules state that Rule 3.3 trumps Rule 1.6, which defines “confidentiality”.

QUESTION: Is this a good rule?

According to one attorney in the audience, this makes sense because an attorney should have some “skin in the game”. Attorneys cannot simply aid a litigious client knowing that the client is filing a false complaint. This is akin to Federal Rule 11. An attorney should know that he or she cannot file a false paper without liability.

In response, Mark stated that New York state courts already have a mechanism for this problem (but this is only in court, not “tribunal“ broadly defined). An attorney who filed a paper with the court has to certify that the filing did not contain false information. If the attorney learns that the filing was false, then he or she must withdraw the certification. The withdrawal of a certification effectively notifies every party in the case that there is a problem, but the attorney is not disclosing any specific client confidence. Under the new rule, the attorney now must reveal the specific client misrepresentation if the client does not reveal the misrepresentation him or herself.

QUESTION: What is a reasonable remediation?

Mark explained that there is some commentary on this issue, but not much. There are two recent ethics opinions on this issue included in the materials. Faced with this problem, the attorney’s first reaction should not be to directly and immediately report the client to the tribunal. What is intended by Rule 3.3 is a process, commencing with a conversation with the client similar to what would have happened under the old Rule 3.3, but now this conversation has “some teeth.” Under the prior rules, the attorney could not do anything if the client refused to correct the misrepresentation; under the new Rule 3.3, the attorney can threaten the client by saying that he or she is ethically obligated to disclose the misrepresentation if the client does not.

To remedy the misrepresentation, the attorney should withdraw the specific evidence. So, for example, if a misrepresentation is contained in a single affidavit or an exhibit, just withdraw that document.

According to Mark, this amendment was sought from judges who were sick of being lied to. It is unclear how this new rule will play out, especially in the case of criminal defense attorneys. He said that, basically, “there is a whole new way for lawyers to get into trouble. Lawyers now need to be acutely sensitive to the possibility that their client is lying, and must cope with that in advance.” He closed with the observation that, under the new rule, we’ll treat judges better than we treat each other because we do not have a duty of remediation with conversations with opposing counsel.

(2) Conflicts of Interest

The materials included a helpful check-list to assist one’s thinking about conflicts prior to accepting a new representation.

Mark pointed out an interesting distinction in the perception of conflicts between small and big firms. The big firm’s view is that clients are sophisticated and they know what they need and want. If they are willing to tolerate the conflict, then they should be able to waive it (“waiver” is a misnomer, its more accurate to say “consent”). The small-firm view is that a conflict is never waivable. The ABA’s approach is more consistent with the “big firm” view, but the State Bar is more aligned with the small firm’s view. When the rule on conflict was being proposed, the State chose to use the same definition that had been used in the NY Code of Professional Responsibility (e.g., “differing interests”). So the standard under DR 5-101 remains, but under the new rules, there was an expansion of “permissible” conflicts of interests. An attorney still cannot represent two sides in a litigation, but if the attorney believes that he or she can represent both sides competently, then the conflict is waivable. The attorney must still obtain informed consent; meaning, the client must understand the conflict. This requires the attorney to have a conversation with the client and accurately predict the conflict that may arise down the road. The attorney should then have the client’s waiver confirmed in writing.

Note that an attorney may also owe ethical obligations to prospective clients and even to witnesses (usually expert witnesses), so the firm should include these names in its conflict check.

(3) Advertising Rules

The Second Circuit has recently held that content-based attorney advertising rules are unconstitutional, subject to a few limited exceptions (e.g., cannot advertise a fictitious law firm).

However, ethics rules concerning solicitation remain; so solicitation must be true and not misleading. Historically, solicitation was absolutely prohibited. Bear in mind that written solicitation must be filed with the court, which may include an attorney’s website. If the website is interactive (e.g., asks the viewer to email the attorney for additional information), then this could be construed as a solicitation and a print-out of the website may need to be filed with the court.

(4) Email Communications

Be aware of email communications with an employee. If, for example, the attorney’s client is involved in an employment dispute, and the attorney is communicating with the employee via the employee’s work email address, then the attorney may be jeopardizing the attorney-client privilege because the email server is owned by the employer. All A/C communications require a “confidential setting.” The attorney should be sure that the employer does not have a policy about personal use of email, or rules concerning the employer’s right to inspect and review the employee’s electronic communications.

If the employee uses Yahoo and Gmail for email, but checks those emails at work, the confidentiality of these communications is unclear (but unlikely to be protected). [My personal experience is that an employer may be able to pull up Yahoo or Gmail emails checked at the office. Images of those emails are stored on the computer.]

The Supreme Court is currently considering a case involving whether an employee had a reasonable expectation of privacy in communications made on the employer’s equipment. The police officer received “sexy” text messages on equipment owned by the employer.

Finally, be aware that there are some bad cases saying that a conversation between a lawyer and his or her firm’s in-house ethics counsel may not be privileged. For example, if the attorney commits malpractice and speaks to the firm’s in-house ethics lawyer, the conversation between the attorney and the in-house lawyer may not be privileged if that client brings suit against the law firm. Instead, in order to be fully protected, the attorney should consult with counsel outside of the law firm.

(5) Practice Pointers

- Return all phone calls
- Review your bills
- Talk to your clients about their accounts when they like you, don’t wait for the relationship to sour

Note that most malpractice claims originate as fee disputes or a failure to return telephone calls.

The Movies (courtesy of Chris Robinson, Esq., Davis Wright Tremaine):

After the break, Mark used excerpts from two movies, Class Action by Michael Apted and The Rainmaker by Francis Ford Coppola, to illustrate the ethics rules in practice (or malpractice). In Class Action, which was based loosely on the Ford Pinto gas tank scandal, ethical issues arising from the unlikely fact pattern that counsel for the defendant manufacturer was the daughter of the lead attorney for the class plaintiffs included conflicts of interest, spoliation of evidence, impermissible contact with a party represented by counsel, and deposition conduct. Issues highlighted by The Rainmaker ranged from lawyer solicitation, client confidences and the attorney-client privilege to the inadvisability of representing a murder suspect when the lawyer is himself an accessory to the crime!

May 31, 2010

Subject: EMI - Director/Sr Director Digital Legal & Business Affairs

TITLE: Director/Senior Director, Digital Legal & Business Affairs
REPORTS TO: Vice President, Digital Legal and Business Affairs
DEPARTMENT: Legal & Business Affairs
CONTACT: Send resumes to Jessica Davis: Jessica.Davis@emicap.com

ABOUT US: The digital legal and business affairs group forms part of the worldwide legal and business affairs department of EMI Music, the recorded music division of EMI. The digital legal and business affairs team is primarily responsible for supporting the digital business development groups throughout the organization by negotiating and drafting EMI’s US, multi-territory and global digital distribution deals to distribute EMI’s music, video and other content via a wide variety of companies including global digital service providers, major mobile/wireless carriers, Internet service providers and smaller entrepreneurial start up companies. The team works closely with the business to coordinate implementation and maintenance of the deals after they are completed. The group also advises the company in relation to the development of digital strategy and policy.

BASIC DESCRIPTION: This position requires a minimum of 4-5 years of transactional legal experience, preferably with an emphasis in intellectual property, entertainment and/or technology. In-house experience strongly preferred. Position works closely with business development executives to negotiate and draft digital distribution agreements, often dealing with complex issues and business models of first impression, including as related to digital downloads, subscription, ringtunes, user generated content and mobile applications. Negotiation of the deals requires coordination with, and input from, multiple departments and stakeholders at EMI. Deals are frequently multi-territory in scope. Accurate, timely and efficient information regarding deal status for management will be expected. Efficient negotiation and drafting in a qualitative manner is essential. Environment is fast-paced and requires the ability to prioritize and work closely with the business to determine and understand the priorities. Must stay up-to-date on latest legal developments (local, regional global) in the areas of publishing, copyright law, data protection/privacy and other industry developments affecting digital business. Expected to become a key internal person for advice and troubleshooting in all aspect of digital legal and business affairs, from deal initiation to ongoing account management and policy. Work as part of the team to develop strategy around infringement targets and litigation.

• J.D. (Member of New York State Bar preferred but not critical, especially if a member of the California bar)
• Qualified candidate with four - five years' of transactional legal experience, including some law firm experience (some in-house experience strongly preferred)
• Familiarity with commercial contracts and strong drafting and negotiation experience required, intellectual property emphasis preferred
• Familiarity with new technology issues and subject matter preferred
• Music industry experience preferred
• Negotiation experience, ability to lead and manage negotiations essential
• Motivated self-starter, excellent communication skills, team player, dedicated professional

ABC Family seeks seasoned VP, Legal Affairs (Burbank, CA)

ABC Family

15+ years of legal affairs experience, entertainment industry, substantial TV series development and production; strong leadership, advisor to senior management.

For full description and to apply, click on link:

About May 2010

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in May 2010. They are listed from oldest to newest.

April 2010 is the previous archive.

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Many more can be found on the main index page or by looking through the archives.