BILL ANALYSIS AB 585 Page 1 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 AB 585 Page 2 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, AB 585 Page 3 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 AB 585 Page 4 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 AB 585 Page 5 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 AB 585 Page 6 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