PUBLICITY II--THE DESCENDIBILITY OF PUBLICITY

ISSUE: DOES THE RIGHT OF PUBLICITY DESCEND TO THE HEIRS OF THE CELEBRITY?

POLICY ARGUMENTS FOR DESCENDIBILITY

1. it rewards, therefore encourages, effort and creativity

2. it increases the expectations of the decedent and those with whom he contracts that they are creating a valuable asset

3. why should advertisers and merchandisers receive a windfall gain instead of the heirs?

POLICY ARGUMENTS AGAINST DESCENDIBILITY

1. how long should it last?

2. is it taxable (inheritance tax)?

3. what about first amendment issues?

4. titles, reputation and offices are not inheritable; why should fame be?

5. actions in defamation do not survive death; why should the opposite (fame)?

6. it will not increase productivity

7. it will not enlarge the stock of goods, services, artistic creativity, information or invention

CASES:

Hicks v. Casablanca Records (S.D.N.Y. 1978).

pp. 241-243. See analogy with University of Notre Dame Du Lac v. 20th Century Fox Films (1965)

Commedy III Productions, Inc. v. Saderup, Inc. (Cal. 2001).

This case involves a conflict between Calif. Civil Code, sec. 990 and the First Amendment.

sec. 990:

*successors in interest of a deceased celebrity control the use of the persona of the celebrity (must register with the Sec. of State)

-the name, voice, signature, likeness, photo

-for commercial purposes ("on or in" a product or in advertising or selling

*the celebrity right lasts for 70 years after death

*exempt

-news, public affairs, sports, political campaigns

-plays, books, films, music, radio/TV programs

-single and original works of fine art

Comedy III is the registered owner of rights to the 3 Stooges. Saderup is an artist who specializes in charcoal drawings of celebrities, which he uses to place silkscreened images on T-shirts.

precedents:

Zacchini

Estate of Presley v. Russen

These cases suggest a balancing test between the right of publicity and the First Amendment: The work has 1A protection if it is "transformative."

*it adds something new (a further puropse or different character)

*the celebrity likeness is "one of the raw materials from which an original work is synthesized" NOT "the very sum and substance of the work in question."

*the marketability and economic value of the challenged work derive primarily from the creativity of the artist NOT from the fame of the celebrity depicted. See pp. 290-291and p. 293.

 

Applied to Saderup's 3 Stooges T's: not transformative. Economic value comes from the fame of the 3 Stooges.

Martin Luther King, Jr. Center for Social Change v. American Heritage Products (Ga. 1982).

p. 303 [lifetime commercial exploitation of persona not required]

[Cairns v. Franklin Mint: Estate of Princess Diana's suit against the Franklin Mint]

Princess Diana's estate granted an exclusive license to use her name/likeness to a charitable Memorial Fund.

The Franklin Mint (without permission) began marketing merchandise bearing her image; one such item was a "tribute plate". The advertising claimed the proceeds of the sale of this plate would go to one of her charities. FM had been marketing items with her image since 1981 without permission, but also without complaint.]