BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session AB 585 Assemblymember Duvall As Introduced Hearing Date: July 1, 2009 Civil Code GMO:jd SUBJECT Deceased Personalities DESCRIPTION Under existing law, a "deceased personality" is a person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death. A deceased personality's right of publicity is protected under Civil Code Section 3344.1 for 70 years after death, and may be transferred by contract, trust, or testamentary instrument. This bill would amend the definition of a "deceased personality" to include a person whose name, voice, signature, photograph, or likeness has commercial value because of his or her death. BACKGROUND In 1984, California enacted what is now Civil Code Section 3344.1, to address the ruling in Lugosi v. Universal Pictures (1979) 25 Cal.3d 813. The decision was interpreted by some as holding that a celebrity's right of publicity expired at death and thus the publicity rights that had not been used or exploited by the time of death of the celebrity defaulted to the public domain. When it was enacted, Civil Code Section 3344.1 recognized publicity rights as property rights that may be transferred, specified prohibited uses, and required the registration of those rights with the Secretary of State. An action to enforce rights protected by Section 3344.1 was then required to be brought within 50 years of the death of the celebrity. (more) AB 585 (Duvall) Page 2 of ? SB 209 (Burton, Ch. 988, Stats. 1999) was enacted to abrogate the Ninth Circuit's decision in Astaire v. Best Film & Video (9th Cir. 1997) 116 F. 3d 1297, which held that the unauthorized use of Fred Astaire's image in a "how to" dance video was not prohibited by the statute. The amendments to Section 3344.1 deleted certain exceptions in the statute that had been relied on by the court in the Astaire case and inserted language to distinguish between permissible use of the celebrity's likeness in works of art and entertainment (which the statute permitted) and use in connection with products, goods, and merchandise (which is prohibited without consent), and extended the period of protection provided by the statute from 50 years to 70 years after the death of the celebrity. The right to consent to the commercial use of a deceased personality's name, voice signature, photograph, and likeness or image is a transferable right, exercisable by the person to whom the right devolved by trust or testamentary instrument, or to whom it was transferred by contract. Last year, a federal district court in Arizona issued a preliminary injunction against enforcement of an Arizona statute that made it a 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, and permitted any person injured by a violation of the law to bring a civil action. This statute was prompted by the actions of one Dan Frazier, a peace activist who owns and operates CarryaBigSticker.com, a Web site devoted in part to selling T-shirts, buttons, magnets and bumper stickers expressing a variety of political views. Frazier sold T-shirts that had the words "Bush Lied" and "They Died" superimposed over the names of 3,461 soldiers that died in Iraq, as well as two other versions of anti-war messaged T-shirts. The City Attorney of Flagstaff, Arizona prosecuted Mr. Frazier, who then sought an injunction against the prosecution and a declaration that the Arizona statute was unconstitutional. The U.S. District Court enjoined the enforcement of the law against Frazier, who then filed a motion for summary judgment, which the court granted. (Frazier v. Boomsma (2008 U.S. Dist. Lexis 63896).) CHANGES TO EXISTING LAW Existing law prohibits the use of a deceased personality's name, voice, signature, photograph, or likeness, without consent, on merchandise or goods, products, or services for 70 years after AB 585 (Duvall) Page 3 of ? the death of the deceased personality. The right to consent is transferable by contract, trust or testamentary instrument, and this right is exercisable by those persons to whom the right was transferred, or, if no such person exists, by the spouse or other specifically listed heirs. An exception to this prohibition is the use of the personality's name, voice, signature or photo or likeness in a play, book, magazines, etc., or other material that is of political or newsworthy value, or is a single work of fine art, or in an advertisement or commercial announcement of any of these uses. Thus, use of a name, voice, signature, photograph, or likeness of a deceased personality 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 under law. (Civ. Code Sec. 3344.1(a)(1), Sec. 3344.1(a)(2), Sec. 3344.1(b).) Existing law defines "deceased personality" as a person whose name, voice, signature, photograph or likeness has commercial value at the time of his or her death, whether or not during his or her lifetime the name, voice, signature, photo, or likeness was used on products, merchandise, goods or for advertising or selling products, merchandise, or services. (Civ. Code Sec. 3344.1(h).) (Emphasis added.) This bill would amend the definition of "deceased personality" to include persons whose names, likenesses, or other characteristics have commercial value because of their death. (Emphasis added.) COMMENT 1. Need for the bill This bill is a response to the Internet sale of T-shirts and other political merchandise that contain the names of American soldiers killed in the war in Iraq. 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 use. "After all," the author states, "the law has been there 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." 2. Protecting a deceased personality's name and likeness: California law on publicity rights AB 585 (Duvall) Page 4 of ? The intent of the Legislature in enacting Section 3344.1 in 1984 is very clear: to create post-mortem publicity rights for celebrities, to extend those rights back to 50 years from the date the statute became effective, and to enable the transfer of such publicity rights to the deceased personality's designated beneficiaries. (SB 613 (Campbell) Ch. 1704 Stats. 1984.) This legislative intent was further evidenced by the Legislature's amendments to the statute in 1999, extending the protection of Section 3344.1even further back, to 70 years from the date the statute first became effective or 70 years from the date of death of the celebrity whichever is later, and yet again in 2007, when it specified the manner by which these property rights are passed by contract, trust, or testamentary instrument and, if there was any question of devolution of the right to intestate heirs, who would take priority. (SB 209 (Burton) Ch. 988, Stats. 1999; SB 771 (Kuehl) Ch. 439, Stats. 2007.) Similar laws protecting publicity rights of deceased personalities exist in states like New York, Washington, and Indiana. All of these laws, including California's, aim to protect the name and image of the deceased personality by recognizing the celebrity's property right in his or her name and image and giving the celebrity and his or her heirs the right to profit from the commercial value of his or her name, voice, and image, whether or not the celebrity exploited this value commercially prior to his or her death. Indeed there has been litigation all over the country involving entitlement to publicity rights that has spawned legislation to further protect these interests. For example, SB 771 (Kuehl, 2007) clarified the law with respect to a deceased personality's publicity rights, where the person died leaving a will but questions were raised later about the devolution of those rights to successor heirs. There has been no case filed involving post-mortem publicity rights of any person who did not have celebrity status prior to death. Under current law, therefore, a person's name, voice, signature, photograph, or likeness must have commercial value prior to death before post-mortem publicity rights attach. Of course, while living, every person has a right to his or her name, voice, signature, photograph, or likeness, and to every other information personal to him or her, and unless consented to, these cannot be reproduced and sold by others commercially. (Civ. Code Sec. 3344.) This right to privacy is recognized by both the United States and California constitutions. But post-mortem publicity rights, conferred by statute where AB 585 (Duvall) Page 5 of ? recognized, are reserved to deceased personalities, as defined. 3. Post-mortem publicity rights of soldiers killed in war and the First Amendment: is conflict a certainty? Because AB 585 would only add to the existing statute a group of people (those who attained commercial value because of their death, not because their images had commercial value at the time of death), a constitutional challenge to the statute, on its face, will probably not succeed. Arguably, the soldiers deserve as much if not more protection from intrusion into their privacy rights because they did not choose to draw attention to themselves or make their identities and personalities public, unlike the original target of the statute, who were celebrities that sought the public eye. Those who choose to thrust themselves into the limelight have less of an argument for protection of their privacy. (See e.g., Comedy III Productions v. Gary Saderup (2001) 25 Cal. 4th 387, holding that once the celebrity thrusts himself or herself 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.) Although the decision will ultimately be left to the court whether this bill, if enacted, is unconstitutional as applied to the offensive T-shirts and other commercial goods, it will likely turn on whether the court finds that the selling of the T-shirts, with the soldiers' names and the emblazoned commentary accompanying the names, is more political speech than commercial speech. Pure commercial speech is less likely to be protected than political speech, or even a combination of commercial and political speech, because under the Supreme Court's ruling in Bd. of Trs. v. Fox (1989) 492 U.S. 469, 474, the level of First Amendment scrutiny [that] must [be used] depends on "the nature of the speech taken as a whole." In the case challenging the Arizona statute, the District court refused to find that the statute was facially unconstitutional as applied to Frazier. However, the court, finding that the commercial (i.e., the selling of the T-shirts) and protected (the political commentary) aspects of the speech were "inextricably entwined, the entirety must be classified as AB 585 (Duvall) Page 6 of ? noncommercial and [the court] must apply the test for fully protected speech," (supra, at 9; citing Riley v. Nat'l. Fed'n of the Blind (1988) 487 U.S. 781, 796; other citations omitted). After doing so, the court found that the T-shirt message was "core political speech fully protected by the First Amendment, notwithstanding that [Frazier] offers them for sale." (Frazier, supra at 10-11.) Thus, on the heels of the Frazier case, when the First Amendment test for speech that is both political and commercial is applied to the language of this bill, if enacted and challenged in court, the court may find that under Riley and Bd. of Trs. v. Fox that the statutory change to the definition of "deceased personality" attempts to create a cause of action to chill protected political speech. Protected political speech was the subject of the landmark Cohen v. California (1971) 403 U.S. 15 case, where Justice Harlan, writing for the Court said, "[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections." (Id, at 22.) It should be noted that under existing law and even under this bill, if enacted, newspapers and local television stations could continue the practice of publicizing in print or on the television news shows the names of fallen soldiers, whether from their communities or from the entire nation, because the information is public information and has both political and newsworthiness value. Where a single work of art is produced from the names, likenesses, images, or signatures of any or all of these soldiers, the law on deceased personalities' publicity rights also would not apply to require consent or to give the heirs or beneficiaries of the deceased personality a cause of action for violating Civil Code Section 3344.1. 4. Bill would apply to other persons who gain attention because of their death This bill is not limited to protection of names, voices, photographs, or likenesses of soldiers who died in the service of the country, whether in Iraq or elsewhere. It would also provide protection for the publicity rights of persons who gain celebrity (or notoriety) status because they were victims of heinous crimes, for example, or the manner of their death AB 585 (Duvall) Page 7 of ? brought wide media coverage to the case, though the attention may have been unwanted. An example is Lacey Peterson, who disappeared on a Christmas eve not too long ago, was later discovered murdered, and whose husband was convicted of killing her after a widely publicized trial. Another is Ron Goldman, who was killed along with Nicole Simpson, wife of O.J. Simpson, in a double-murder in the late 1990's. 5. Arguments in support; Opposition's concerns The American Legion and Vietnam Veterans of California support this bill. "We believe this will protect our fallen soldiers and their families from having the soldier's names or likenesses abused by groups, particularly those groups who protest the war by printing t-shirts with dead soldier's names on them." Other supporters, parents of soldiers who had been lost in the war in Iraq, state that "[e]xploitation because of death solely for monetary gain is reprehensible and in complete disregard for the parents' well-being." However, the issue of the political speech nature of the printed T-shirts is of great concern to the California Newspaper Publishers Association (CNPA): ?[T]his bill is intended to create civil liability for those who have printed the names of deceased soldiers on T-shirts for sale to the public. Without judging a particular factual situation, there is strong argument that the creation and distribution of T-shirts with the names of deceased soldiers is political speech that is protected by the First Amendment and the California Constitution, even if the shirts are sold for a profit. Because it appears the bill is intended to chill this speech, rather than protect the legitimate intellectual property interests of the heirs of deceased personalities, CNPA must respectfully oppose [this] bill. Support : American Legion - Department of California; Vietnam Veterans of America, California State Council; California State Sheriffs' Association; The Blue Star Moms; Sheriff-Coroner of Stanislaus County; Mike Sr. and Angela Anderson Opposition : California Newspaper Publishers Association (CNPA) HISTORY AB 585 (Duvall) Page 8 of ? Source : Author Related Pending Legislation : None Known Prior Legislation : None Known Prior Vote : Assembly Judiciary Committee (Ayes 10, Noes 0) (Consent) Assembly Floor (Ayes 75, Noes 0) (Consent) **************