BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 585
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          Date of Hearing:  April 14, 2009

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                 AB 585 (Duvall) - As Introduced:  February 25, 2009

                                  PROPOSED CONSENT
           
          SUBJECT  :   DECEASED PERSONALITIES 

           KEY ISSUE  :   Should A law that imposes liability on persons who  
          commercially misappropriate a deceased celebrity's name, voice,  
          signature, photograph, or likeness be amended to include the  
          commercial misappropriation of persons whose name, voice,  
          signature, photograph, or likeness have commercial value  because  
          of  their death?

           FISCAL EFFECT  :   As currently in print this bill is keyed  
          non-fiscal. 

                                      SYNOPSIS

          This bill is a response to Internet websites selling T-Shirts  
          and other political paraphernalia that list the names of the  
          Iraqi war dead as a means of expressing opposition to the war in  
          Iraq and, presumably, to make a profit as well.  This practice  
          has been especially offensive to bereaved family members and  
          veterans groups, who have pressured lawmakers in other states to  
          pass laws that ban sales of items that use names of troops  
          killed in Iraq without the permission of their families.   
          Existing state law imposes liability on persons who use the  
          names, voices, signatures, photographs, or likenesses of  
          "deceased personalities," usually celebrities of some sort, for  
          commercial purposes and without the consent of the person or  
          persons who hold the deceased persons "right of publicity."   
          However, existing law requires that these person's names or  
          images or other characteristics had commercial value "at the  
          time of their death."  This bill attempts to expand the existing  
          definition of "deceased personalities" to include persons whose  
          name, image, and so on acquires commercial value "because of"  
          their death, thereby including within the scope of the existing  
          "right of publicity" law the young men and women whose names now  
          have commercial value because of their unfortunate death.  This  
          bill would, the author believes, permit family members to take  
          action against the practice of selling this merchandise.  Both  








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          under existing law and this proposed measure, however, it would  
          appear that newspapers and local televisions stations, for  
          example, could continue their practice of printing the names of  
          fallen soldiers, since this is public information that has both  
          political and newsworthy value. 

          Although there is no known opposition to this bill, experience  
          in Arizona suggests that such legislation may face First  
          Amendment challenges, on the grounds that the persons selling  
          these goods are primarily making political statements rather  
          than pursuing commercial gain.  How the proposed bill would  
          withstand a First Amendment challenge in California is not  
          clear.  While the Arizona law imposed criminal penalties, this  
          bill expands an existing right of civil action, so the outcome  
          of the Arizona litigation may not be directly on point at any  
          rate.

           SUMMARY  :  Seeks to deter commercial sales of the names of Iraqi  
          war dead by expanding the definition of "deceased personality" -  
          for purposes of the statutory provisions imposing liability on  
          persons who exploit a deceased personality's name, voice,  
          signature, photograph, or likeness for commercial purposes  
          without consent - to include any natural person whose name,  
          voice, signature, photograph, or likeness has commercial value  
          either at the time of the person's death, or because of the  
          person's death. 

           EXISTING LAW:  

          1)Imposes liability on any person who uses a deceased  
            personality'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 (a)(1).) 

          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,  








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            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.  (Civil Code Section 3344.1 (a)(2).)

          3)Defines a "deceased personality" to mean 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 name, voice, signature, photograph, or likeness on  
            products, merchandise or goods, or for purposes of advertising  
            or selling products, goods, merchandise, or services.  (Civil  
            Code Section 3344.1(h).)  

           COMMENTS  :  Effective in 1985, the California Legislature enacted  
          legislation to provide for a posthumous, seventy-year "right of  
          publicity" that is transferable by contract, trust or  
          testamentary instrument.  This right of publicity imposes  
          liability on any person who uses a deceased personality's name,  
          voice, signature, photograph, or likeness within seventy years  
          of the personality's death for commercial gain and without the  
          consent of the person or persons who hold the right of publicity  
          - usually the person's surviving family members, heirs, or  
          trustee.  Generally, this statute was designed to prevent the  
          commercial misappropriation of celebrities who were famous in  
          their lifetimes and whose name, voice, or likeness survives as  
          something akin to an intellectual property right that has  
          continuing commercial value, especially when the person's fame  
          is used to sell merchandise.  Specifically, the existing law  
          defines a "deceased personality" to mean any natural person  
          whose name, voice, signature, photograph, or likeness had  
          commercial value at the time of his or her death.  Existing law  
          makes exemptions for appropriation without consent when used in  
          a play, book, magazine, work of art, or any work of political or  
          newsworthy value.  In short, the law targets primarily  
          commercial exploitation of persons who were already celebrities  
          by the time that they died. 

          This bill seeks to amend the existing definition of "deceased  
          personality" to include persons whose names, likenesses, or  
          other characteristics have commercial value because of their  








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          death.  In particular, this bill is a response to the emergence  
          of Internet websites selling T-shirts and other merchandise that  
          contains the names of American soldiers killed in the Iraq War.   
          According to the author, out of respect to both the soldiers and  
          their families, the names of fallen soldiers should not be  
          exploited for commercial gain.  The author notes that the  
          existing law "has been in place for quite some time to protect  
          Hollywood actors.  We are merely adding on to the existing  
          language in an attempt to offer the same protection to our  
          soldiers and their families that we extend to actors." 

           First Amendment Issue:   Although few would quarrel with the  
          sentiment behind this bill, it nonetheless raises First  
          Amendment issues that the Committee should consider.  Because  
          only a handful of states have enacted laws attempting to  
          prohibit the sale of T-shirts and other goods with the names of  
          dead soldiers on them, and because these laws are of fairly  
          recent origin, there is not a substantial body of case law to  
          say with certainty how a court would interpret the application  
          of this proposed bill to its intended target.  Certainly the  
          bill is not facially unconstitutional, given that it merely adds  
          another category of deceased persons to already existing law.   
          Indeed, protecting the publicity rights of deceased solders may  
          deserve even more protection, since unlike the celebrities  
          anticipated in the original legislation, these soldiers did not  
          choose to thrust themselves into the limelight; therefore, the  
          First Amendment challenges may be less compelling.  (See e.g.  
          Comedy III Productions v. Gary Saderup (2001) 25 Cal. 4th 387,  
          holding that once the celebrity thrusts himself or herself  
          forward into the limelight, the First Amendment dictates that  
          the right to comment on and make other expressive uses of the  
          celebrity image must be given broader scope.)  However, while  
          the bill may not be facially unconstitutional, it is possible  
          that the bill could be unconstitutional as applied, depending,  
          in part, upon whether a court were to find if the selling of the  
          T-shirts with the soldiers' names is better characterized as  
          commercial or political speech.  Commercial speech is generally  
          afforded less protection under the First Amendment, and the  
          California Supreme Court has held that the right of publicity  
          may, in certain circumstances, trump the right of advertisers to  
          make use of celebrity images.  (Id.) 

          In Fraizer v. Boomsma (2008 U.S. Dist. LEXIS 63896), a federal  
          district court in Arizona issued a preliminary injunction  
          against enforcement of an Arizona statute that made it a  








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          misdemeanor to use the name, portrait or picture of a deceased  
          soldier to advertise or sell goods, wares, or merchandise,  
          without the prior consent of the soldier's spouse, immediate  
          family members, or trustee.  It also permitted any person  
          injured by a violation of the law to bring a civil action.  As  
          in California's "right of publicity" law, the Arizona law carved  
          out exemptions for noncommercial purposes, including news  
          accounts or artistic or literary uses.  The Arizona statute was  
          prompted by the actions of Dan Frazier, a self-described peace  
          activist who sold, over the Internet, T-shirts that had the  
          words "BUSH LIED - THEY DIED" superimposed over the names of  
          actual American soldiers who had died in Iraq.  The prosecution  
          was brought by the City Attorney of Flagstaff, Arizona, where  
          Frazier resided.  Frazier sought an injunction against the  
          prosecution and a declaration that the Arizona was  
          constitutional.  The court initially issued a preliminary  
          injunction that enjoined the defendants from enforcing the law  
          against Frazier, and Frazier then moved for summary judgment,  
          which the Court then granted. 

          The District Court, while refusing to find that the statute was  
          facially unconstitutional, held that it was unconstitutional as  
          applied to Frazier.  The court concluded that Frazier's T-shirts  
          were "core political speech fully protected by the First  
          Amendment, notwithstanding that he offers them for sale."  The  
          Court reasoned that the commercial element of the speech was  
          "inextricably intertwined with otherwise lawfully protected  
          speech [and] the level of First Amendment protection must depend  
          upon 'the nature of the speech taken as a whole."  (Frazier,  
          supra at 10-11, quoting Bd. of Trs. v. Fox (1989) 492 U.S. 469,  
          474.)  

          Thus, while it is unlikely that a court would find the provision  
          added by this bill unconstitutional on its face, a court could  
          possibly find it unconstitutional as applied.  However, it  
          should be pointed out that the California law is different from  
          the Arizona law in two important respects: first, it does not  
          impose a criminal penalty; and second, it is an amendment to an  
          existing "right of publicity" statute that has withstood  
          constitutional scrutiny.  The Arizona statute, moreover, was  
          enacted for the express purpose of targeting a specific  
          activity, and perhaps even a specific person.  Finally, any  
          potential challenge to the application of this bill must be  
          evaluated, as the courts have held, according to "the nature of  
          the speech taken as a whole."  (Id.)  In addition, it is also  








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          possible that a court could find that the selling of such  
          T-shirts, if not done primarily for commercial purposes, would  
          fall under the exemption in existing law for uses that have  
          "political or newsworthy value."  

           ARGUMENTS IN SUPPORT  :  The American Legion supports this bill  
          because it will expand the definition of deceased personality to  
          include deceased soldiers.  "With some anti-war groups creating  
          T-shirts listing our fallen soldier's names of them," the  
          American Legion concludes, "we agree that these fallen heroes  
          and their families need protection from having their names or  
          images used by others."   The Vietnam Veterans of America,  
          California State Council supports this bill for substantially  
          the same reasons. 

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Legion, Department of California
          Vietnam Veterans of America, California State Council

           Opposition 
           
          None on file 
           
          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334