BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 585                                                      
          Assemblymember Duvall                                       
          As Introduced
          Hearing Date: July 7, 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. 

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          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  
                                                                      



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          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  

                                                                      



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          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  
                                                                      



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          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  
                                                                      



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          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  
                                                                      



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          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
           
                                                                      



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           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)

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