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
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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