The Right of Publicity is the right that individuals have to control the use of their name and likeness in a commercial setting. You cannot put a picture of Cher on your brand of pickles without her permission. Everyone has a right of publicity but it is particularly valuable for celebrities who can earn large fees from endorsing products.
The right is determined under state law. Each state applies its own laws, and the states provide varying treatment on a number of issues. For example, the states decide whether this right is inherited by one's heirs or is a personal right, that dies with the celebrity.
California courts first held that the right of publicity was personal and did not descend. In 1984, however, the California legislature changed the law. The legislators enacted Civil Code section 990 which provides that the right of publicity descends for products, merchandise and goods, but does not descend for books, plays, television and movies. A similar statute, California Civil Code section 3344 prohibits the unauthorized use of the name and likeness of living persons on products, except for news and public affairs uses. . Both statutes attempt to balance First Amendment rights of journalists and business people against rights of publicity of celebrities and their heirs.
Generally, the state law that applies is the law where the celebrity was domiciled when he or she dies. The state of Washington, however, attempted to expand its rights of publicity so that it would cover even those who did not reside in Washington when they died.
That Washington law, the Washington Personality Rights Act (“WPRA”), was reviewed in a recent decision regarding Jimi Hendrix’s estate's right of publicity. A federal judge in ruled that WPRA), violated the U.S. Constitution. The court concluded that applying this law regardless of the law of the domicile of the individual at the time of death was arbitrary and unconstitutional.
WPRA was initially passed in 1998 after a prior decision concluded that Hendrix' publicity rights didn't descend to his father and sole heir, Al Hendrix, since Jimi Hendrix didn't reside in Washington at the time of his death. The law applied retroactively.
The suit was brought by Experience Hendrix, L.L.C. which owns several songs written by Jimi Hendrix and various federally registered trademarks incorporating Hendrix’s name, image, and song titles. They sued defendant Hendrixlicensing.com, a seller of Jimi Hendrix merchandise, and sought to enjoin it from using various song titles and lyrics and use of his name and likeness.
Even though the plaintiff did not allege any claims under WPRA, the court reviewed it because the essence of plaintiff’s allegation was that Hendrix’s right of publicity did not expire upon his death. Under New York law, where Hendrix was domiciled at the time of his death, the right of publicity did not survive his death.
The Defendant argued successfully that such a choice-of-law directive violated the Full Faith and Credit Clause and Due Process Clause of the United States Constitution.
The court also found the law arbitrary because applying it would result in uncertainty regarding the ownership and existence of a right of publicity because it applies only in Washington, and that almost all states except Indiana have determined that the law of the person’s domicile should apply.
The decision can be read at: CASE
Note that this decision could be reversed by a higher court.
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