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Is a deceased celebrity’s right of publicity descendible in California?

Posted by Steve Vondran | Jan 05, 2020 | 0 Comments

California Right of Publicity Essentials - Heirs can capitalize on the deceased publicity rights!

California Right of Publicity Lawyer

Introduction

If you have a famous deceased aunt, uncle, mom, dad, or other family member who is deceased, they can will all of their personal and intellectual property to you (meaning the rights are "descendible to heirs") in a will for example.  Yet, this was not always the case as the Lugosi case shows.  Later, California clarified the law by making it clear that these personal rights to one's name, image and likeness DO IN FACT DESCEND to heirs, and can be exercised by them.

Per wikipedia:

"Lugosi v. Universal Pictures, 603 P.2d 425 (Cal. 1979), was a decision of the Supreme Court of California with regard to the personality rights of celebrities, particularly addressing whether these rights descended to the celebrities' heirs. The suit was brought by the heirs of Béla Lugosi, who sued Universal Pictures in 1966 for using his personality rights without the heirs' permission. The trial court ruled in favor of the Lugosi heirs, but Universal Studios won the case in an appeal. The court determined that a dead person had no right to their likeness, and any rights that existed did not pass to his heirs.

Aftermath:

The California Celebrities Rights Act of 1986 created an inheritable right to a person's name or likeness for 70 years after death. Legislation passed in 2007 extended that right retroactively to all persons who have died since January 1, 1938."

Attorney Steve® Tip:  Note that it is always important to see if there are any COPYRIGHTS involved. Copyrights last for the "life of the author plus 70 years."  Infringement can carry penalties of $750 to $150,000 per infringed Work if the image, photo, video, illustration or other creative Work is willfully infringed.

California Civil Code Section 3344.1 - Prohibits Post-Mortem misappropriation of name, image, and likeness.

(1) Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision (c), shall be liable for any damages sustained by the person or persons injured as a result thereof.

In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by the injured party or parties, as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.

In establishing these profits, the injured party or parties shall be required to present proof only of the gross revenue attributable to the use, and the person who violated the section is required to prove his or her deductible expenses.

Punitive damages may also be awarded to the injured party or parties. The prevailing party or parties in any action under this section shall also be entitled to attorney's fees and costs.

Watch Attorney Steve® explain the California Right of Publicity Law (General Overview)

right of publicity lawsuits

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The Landmark Lugosi Case Said "No" to Descendability

Here is one of the first and most famous cases on the dependability of Right of Publicity rights in California:

The issue as framed by the trial judge is: "(Plaintiffs) seek to recover the profits made by (Universal) in its licensing of the use of the Count Dracula character to commercial firms and to enjoin (Universal) from making any additional grants, without (their) consent . . . . The action, therefore, raises the question of whether Bela Lugosi had granted to (Universal) in his contracts with (Universal) merchandising rights in his movie portrayal of Count Dracula, the nature of such rights, and whether any such rights, if retained by Bela Lugosi, descended to the (plaintiffs).

The trial court concluded that: Lugosi during his lifetime had a protectable property or proprietary right in his facial characteristics and the individual manner of his likeness and appearance as Count Dracula; that said property or proprietary right was of such character and substance that it did not terminate with Lugosi's death but descended to his heirs; and that (they) acquired all right, title and interest in and to said property under the will of Lugosi

We agree, however, with Dean Prosser who considers a dispute over this question "pointless." (Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 406.) "Once protected by the law, (the right of a person to the use of his name and likeness) . . . is a right of value upon which plaintiff can capitalize by selling licenses." (Italics added; Prosser, Law of Torts (4th ed. 1971) p. 807.)

We hold that the right to exploit name and likeness is personal to the artist and must be exercised, if at all, by him during his lifetime. (End of Court of Appeal opinion.). The judgment is reversed and the trial court is directed to enter a new judgment in favor of Universal for its costs. The plaintiffs' cross-appeal is dismissed as moot. Universal shall recover its costs of the appeal."

See Lugosi v. Universal Pictures, 25 Cal.3d 813, 813, 160 Cal.Rptr. 323, 603 P.2d 425 (1979).

The Four "Privacy Rights Discussed

The Lugosi case also discussed the 4 "Privacy Torts" in California:

The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, 'to be let alone.' Without any attempt to exact definition, these four torts may be described as follows:

1. Intrusion upon the plaintiff's seclusion or solitude or into his private affairs

2. Public disclosure of embarrassing private facts about the plaintiff

3. Publicity which places the plaintiff in a false light in the public eye

4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness (CA right of publicity) - click on video above."

Click on the links above to watch our videos on each privacy tort.

The California Celebrities Rights Act of 1986 says "YES" to descendability of Publicity Rights to heirs of the deceased's estate

According to Wikipedia:

California Civil Code section 3344 is for the publicity rights of living persons, while Civil Code section 3344.1, known as the Astaire Celebrity Image Protection Act, grants statutory post mortem rights to the estate of a "deceased personality", where:

  • that personality had been "any natural person whose name, voice, signature, photograph, or likeness has a commercial value at the time of his or her death"
  • any person using such personality's "name, voice, signature, photograph or likeness on or in products, merchandise or goods" without prior consent was liable to be sued for damages and profits arising from the unauthorized use, and
  • such prior consent may only be given by persons to whom the personality had transferred such power by contract or trust prior to his death, or by a trust or will after his death, or, where no such latter provision was made, his spouse, children, and/or grandchildren, but
  • a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works, shall not be considered a product, article of merchandise, good, or service if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work."

In 1999, the period of protection was extended from fifty years after a person's death to seventy years. Similar laws have been enacted by 12 other states in the United States including New York.

ROP LAWSUIT CHECKLIST:

1.   Did the deceased personality have significant value?

2.   Were the rights assigned prior to death?

3.  Where was the deceased domiciled at death (this can depend on where a deceased celebrity has multiple homes such as in San Francisco, San Diego, Laguna Beach, Nantucket, Sag Harbor, New York City, and Newport Beach for example)?

4.  Is there a "first amendment" defense? ("newsworthy" use of a public figure, non-commercial vs. commercial speech).

5.  Can you prove damages?

6.   Are there any "choice of law" agreements that govern the dispute?

7.  Is the lawsuit being brought within the rights period?  

In California, the rights extend 70 years beyond the death of the personality. 

Cal Civil Code Section 3344.1(g) states:

An action shall not be brought under this section by reason of any use of a deceased personality's name, voice, signature, photograph, or likeness occurring after the expiration of 70 years after the death of the deceased personality.

Contact a California Right of Publicity & Entertainment Law Firm 

We have a track record of success when it comes to litigating California Right of Publicity Claims and have recovered money damages from our Client including a case against one of the largest real estate companies in the United States and one of the largest sports manufacturers on earth.  Call us for a free initial consultation if you believe legal rights were violated.  Call us at (877) 276-5084 or send us an email through our contact form.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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