BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 585
Assemblymember Duvall
As Introduced
Hearing Date: June 23, 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)
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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.
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
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
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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
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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