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?