A bill passed on September 7, 2007 significantly strengthened the publicity rights held by the estates of celebrities in California. The California Legislature passed Senate Bill 771, which, if approved by Governor Schwarzenegger, would amend California Civil Code Section 3344.1 to protect retroactively the publicity rights of celebrities who died before 1985. Further, the bill, proposed by the Screen Actors Guild and drafted by State Senator (and former child actor) Sheila Kuehl, provides that publicity rights are freely descendible by any testamentary instrument, even if executed before January 1, 1985. In passing the bill, the Legislature aims to abrogate two decisions made earlier this year, Shaw Family Archives, Ltd. v. CMG Worldwide, Inc., No. 05 Civ. 3939 CM, 2007 WL 1413381 (D.N.Y. May 7, 2007) and Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., No. CV 05-2200 MMM (MCx) (D. Cal. Filed May 14, 2007), where both courts interpreted the California statute to extend post-mortem publicity rights only to personalities who died after January 1, 1985.

Evolution of California’s Right of Publicity Statute

California first enacted a right of publicity statute in 1984, after the California Supreme Court in Lugosi v. Universal Pictures, 25 Cal.3d 813 (1979) held that the right of publicity “protects against the unauthorized use of one’s name, likeness, or personality.” The 1998 amendments to the statute differentiated between permissible and impermissible uses, the former including use of the celebrity’s likeness in works of art and entertainment and the latter prohibiting use in connection with products, goods, and merchandise. The amendments also extended the period of right of publicity protection to seventy years, rather than fifty years, after the personality’s death.

Earlier this year, two federal courts revisited the issue of the scope of California’s right of publicity statute. In Shaw, the family of photographer Sam Shaw alleged that it had the right to market Shaw’s famous photograph of Marilyn Monroe from the set of the 1955 film “The Seven Year Itch.” In Milton Greene Archives, several photographers likewise believed that they had the rights to images of the now-deceased Monroe. When Monroe died in 1962, she left the balance of her estate to acting coach Lee Strasberg, who, upon his death, left most of his estate to his wife, Anna Strasberg. Anna Strasberg transferred her interest in Monroe’s estate to Marilyn Monroe LLC, who licensed CMG to use Monroe’s images and likenesses.

Both the New York and California courts held that the California statute did not apply to Monroe, because she died before 1985, the year when the statute had originally been passed. The courts relied on generally accepted probate laws, which assert that testators can only transfer property actually held at the time of their death. Because at the time of Monroe’s death, California had not yet recognized a right of publicity, she could not have passed a right she did not own through a residuary clause in her will. Only heirs specified in the statute could exercise such rights.

Thus, the courts in these cases acknowledged that the California laws confer rights of publicity specifically to the surviving spouses and children of celebrities who died before Section 3344.1 was enacted. These rights may not, however, be transferred by stipulation of the celebrity’s will to other beneficiaries (such as CMG). Specifically, the District Court in Milton Greene Archives explained that the defendants had “no standing to assert the publicity rights they seek to enforce in this action.” Milton H. Greene Archives, Inc. at *36. The court left open the possibility for legislation. Specifically, the District Court explained, “Nothing in this order prevents legislatures from enacting right of publicity statutes so as to vest the right of publicity directly in the residuary beneficiaries of deceased personalities’ estates or their successors.” Id.

The Effect of S.B. 771

These decisions led to S.B. 771. The bill does not change but rather clarifies the scope of the earlier California statute, asserting that Section 3344.1 shall retroactively include deceased personalities who died before January 1, 1985 and that publicity rights are freely descendible by any testamentary instrument, even if executed before January 1, 1985. It further addresses the probate principles which were at issue in Shaw and Milton Greene Archives, now acknowledging that the right of publicity existed at the time of a personality’s death occurring before January 1, 1985 and those rights shall vest in heirs specified by the testamentary instrument. If there is no express transfer of these rights in the testamentary instrument, then any provision disposing of the balance of the personality’s assets is an effective transfer of such rights. In order for the statutory heirs to retain their publicity rights of personalities who died before 1985, they must have exercised such rights before May 1, 2007; otherwise, according to the bill, the rights will vest in heirs specified by testamentary instrument.

This bill, if approved by Governor Schwarzenegger, would render the decisions of the courts in Milton Greene Archives and Shaw invalid. Arent Fox is monitoring the approval of S.B. 771.

For more information, please contact:

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Sarah Bruno
bruno.sarah@arentfox.com
202.775.5760