On Oct. 10, 2007, California Governor Arnold Schwarzenegger signed into law 2007 Cal. Stat. ch 439, otherwise known as the “Dead Celebrities Bill.” The new law broadens California’s existing protections for the right to publicity, a legal principle that allows a person whose identity has commercial value to control the manner in which the person’s name or image is marketed.
The use of licensed images of deceased celebrities as a marketing ploy to pitch products has helped to create a multi-million dollar dead celebrity merchandising industry, according to an Oct. 29, 2007 Forbes Magazine story listing the “Top-Earning Dead Celebrities of 2007.” But the question of who gets to collect the royalties from marketing dead celebrity images is far from clear-cut.
The bill’s sponsor, California State Senator Sheila Kuehl (D-Los Angeles), told the Los Angeles Times for a July 23, 2007 story, “This bill is a recognition of the right to publicize and use an image as a kind of property right that extends beyond death and can be willed as a kind of personal property. The image of a celebrity is not something the public can use generally ... no matter how popular the celebrity is.”
2007 Cal. Stat. ch 439 amends California Civil Code Section 3344.1 to retroactively bestow posthumous protection for rights of celebrities who died before 1985.
In 1984, California passed Civil Code Section 3344.1, dubbed the “Astaire Celebrity Image Protection Act,” which created a posthumous right of publicity for celebrities that extended for 70 years after the celebrity’s death. The law became effective on Jan. 1, 1985, according to a California Assembly Committee on the Judiciary analysis of the new bill signed into law in October 2007. The committee’s analysis is available on the California Senate Web site at http://info.sen.ca.gov/pub/07-08/bill/sen/sb_0751-0800/sb_771_cfa_20070709_103425_asm_comm.html.
Although California Civil Code Section 3344.1 defined a “deceased personality” for purposes of the law as a natural person who had died within 70 years prior to Jan. 1, 1985, two federal district court decisions in May 2007 interpreted the California law to stand for the proposition that celebrities who died before the bill’s effective date on Jan. 1, 1985 were not granted a posthumous right of publicity.
Both federal district court cases concerned disputes over the likeness of actress Marilyn Monroe between the heirs of Monroe’s estate and the heirs of photographers who held copyrights to images of the actress. The photographers’ heirs independently licensed Marilyn Monroe’s image without consulting her estate, and the estate’s heirs contested the photographers’ heirs’ ability to do so.
In Shaw Family Archives Ltd., v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007), the U.S. District Court for the Southern District of New York ruled on cross-motions for summary judgment that Marilyn Monroe could not have bequeathed a post-mortem right to publicity to her heirs. The court initially determined that the relevant state laws from New York (no common law or statutory right of publicity for dead persons), California (see Cal. Code 3344.1), and Indiana (see 32 Ind. Code., Art. 35, Chap. 1, sectionsection 1-20) had not, at the time of Monroe’s death in 1962, bestowed a postmortem right of publicity. Since Monroe could only have bequeathed property that she owned at her death to her heirs, and since she herself had not been granted a postmortem right of publicity at the time of her death by state law, she could not pass such a right on to her heirs in her will, the court ruled. As a result, any right of publicity that Monroe enjoyed her lifetime was extinguished at her death.
On May 14, 2007, in Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., No. CV 05-2200 (MMM) (C.D. Cal.), the U.S. District Court for the Central District of California issued a similar ruling. It held that under California Code Section 3344.1, beneficiaries of a person who died before 1985 had no right to exploit the deceased celebrity’s name, image, and likeness. Only persons who died after January 1, 1985, according to the court, could transfer their publicity rights to their own designated beneficiaries.
According to the California Assembly Committee on the Judiciary analysis, the purpose of the new bill was to abrogate the two federal district court decisions from May 2007 and clarify that a deceased celebrity’s publicity rights apply to individuals who died before Jan. 1, 1985.
Similar bills to protect the publicity rights of dead celebrities have been introduced in New York and New Jersey.
In 2007, a bill that would recognize a postmortem right of publicity in perpetuity for any person deceased after January 1, 1938 was introduced as Senate Bill 6005 and Assembly Bill 8836 in the New York State Legislature. According to the summary of the bill on the New York State Legislature’s Web site, http://assembly.state.ny.us/leg/?bn=A08836, it would prohibit use for advertising purposes of the name, portrait, voice, signature, or picture of a deceased person without the written permission of the individual’s estate. The bill’s purpose is to grant a pos-mortem right of publicity in New York so that “quick buck artists and unprincipled merchandisers who care nothing about the individuals concerned” cannot profit from use of a celebrity’s likeness. The state legislature Web site indicates that the bill was amended after a third reading on June 14, 2007 and was then referred to the judiciary committee on Jan. 9, 2008.
In November 2007, the “Celebrity Image Protection Act” was introduced in the New Jersey State Legislature as Bill No. A4476 to recognize a postmortem right of publicity for a “deceased personality,” defined as any person dying within 70 years prior to Jan. 1, 2008. The bill is modeled after California’s Civil Code Section 3344.1 and provides a civil action for unauthorized use of a deceased celebrity’s name or image for commercial purposes. No action can be brought after the expiration of 70 years after the death of the celebrity, according to the terms of the bill.
According to the New Jersey State Legislature Web site, http://www.njleg.state.nj.us/bills/BillView.asp, the bill was referred to the Assembly Judiciary Committee following the bill’s introduction on Nov. 8, 2007.
– Amba Datta
Silha Research Assistant