Introduction

Following other states that have updated their right of publicity statutes, Washington Gov. Chris Gregoire recently signed into law a bill that strengthens the publicity rights of the estates of deceased personalities in Washington. The bill’s amendments were drafted and passed in response to cases involving the rights of Jimi Hendrix and Marilyn Monroe. The bill, which was passed in August 2007, aims to clarify the application of the Washington Personality Rights Act of 1998 to conform to the original intent of the drafters. In determining ownership of publicity rights under the new provisions: (i) Washington law governs regardless of the laws of the personality’s state of domicile; (ii) publicity rights extend retroactively to include personalities who died before the enactment of the Washington Personality Rights Act: (iii) and testamentary instruments existing at the time of the personality’s death are given effect, even if they were created before the effective date of the Act.

Amending the Washington Personality Rights Act

In 1998, the state legislature passed the Washington Personality Rights Act, which sought to protect the publicity rights of personalities from commercial misappropriation. Since then, however, courts have inconsistently applied the provisions of the Act, creating confusion over when and how the Act is applied. The decision in Hendrix LLC v. The James Marshall Hendrix Foundation instigated efforts to clarify the Act’s purpose and specifications. In Hendrix , the US Court of Appeals for the Ninth Circuit declined to apply Washington law, because Washington did not have an express choice-of-law provision. Therefore, applying New York law, which was the state of Hendrix’s domicile at death, Hendrix’s father did not have the power to assign to plaintiffs Hendrix’s right of publicity because New York did not (and still does not) recognize a postmortem right of publicity at the time of Hendrix’s death. The court in Hendrix suggested that Washington legislature incorporate a choice-of-law provision to prevent future confusion and to ensure their personalities’ publicity rights are protected. Section 1 of the amended act addresses this issue, expressly stating that Washington law will apply to all living and deceased personalities, regardless of state of domicile or state of domicile at the time of death.

The Washington law also addresses problems that arose in the recent Marilyn Monroe cases, which the California State Legislature recently resolved through clarification of its own right of publicity statute. 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) both focused on the issue of who had the rights to Marilyn Monroe’s right of publicity. After Monroe died, several photographers believed they had the rights to use her image and likeness and attempted to assert this right under California’s right of publicity statute, Cal. Civ. Code § 3344.1. Both courts, however, held that the statute did not apply to her because the statute had not yet been passed at the time of her death. Since no right of publicity was recognized at that time, she could not have passed a right she did not own through a residuary clause in her will, thus transferring the right to statutorily specified heirs.

In October 2007, Gov. Arnold Schwarzenegger (R) signed a bill amending California’s right of publicity statute, restoring the rights of Monroe’s beneficiaries to claim ownership of her right of publicity. The bill clarified that rights of publicity could be passed through any testamentary instrument, or residual clause therein, even if those rights did not exist at the time of the celebrity’s death. The Washington law includes a similar provision protecting beneficiaries in situations where the personality’s testamentary instrument predates the enactment of the right of publicity law. The new section instructs courts to examine the testamentary instrument in effect at the time of a personality’s death in determining ownership of publicity rights.

The Effect of SHB 2727

Because of the confusion over how and when to apply the Washington Personality Rights Act of 1998, the governor signed into law amendments that revise and clarify the scope of the Act. Washington follows the practice of many other states, which recognize a postmortem right of publicity. The law applies retroactively to protect the publicity rights of those who died before the enactment of the Act. Furthermore, the law strengthens the rights of beneficiaries, as the courts will give effect to the testamentary instrument existing at the time of the individual’s death. The provisions of the amended act apply to all causes of action that were initiated on or after June 11, 1998, regardless of when the cause of action arose. Passing this legislation is an important step to ensure consistent application of right of publicity principles in the Ninth Circuit, home to many celebrities and estates of celebrities.

Arent Fox is monitoring this issue. If you have questions, please contact Anthony V. Lupo or Sarah Bruno.

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

Sarah L. Bruno
bruno.sarah@arentfox.com
202.775.5760