BILL ANALYSIS
AB 585
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 585 (Duvall)
As Amended September 3, 2009
Majority vote
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|ASSEMBLY: |75-0 |(April 20, |SENATE: |24-10|(September 8, |
| | |2009) | | |2009) |
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Original Committee Reference: JUD.
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.
The Senate amendments make a technical correction and add
co-authors.
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.
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,
newspaper, musical composition, film, radio or television
program, in material that is of political or newsworthy value,
AB 585
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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.
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.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
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.
AB 585
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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
death. In particular, this bill is a response to the emergence
of Internet Web sites 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."
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0002973