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Publicity Rights Come of Age

By Kari Santos | Dec. 2, 2014


Expert Advice

Dec. 2, 2014

Publicity Rights Come of Age

In California, the right of publicity is now considered property that can be freely transferred to the next generation

Nearly 60 years ago, a federal appellate panel described the state of privacy law as "that of a haystack in a hurricane." (Ettore v. Philco Tele. Broad. Corp., 229 F.2d 481, 485 (3d Cir. 1956).) Since then privacy law has stabilized and expanded, fostering the right of publicity, which itself has undergone decades of development. But strong winds may be coming to scatter the hay once again.

Right of Publicity
In a 1979 case involving the estate of the movie actor who famously portrayed Count Dracula, the California Supreme Court considered whether "an individual's interest in the commercial use of his likeness is protected solely as an aspect of the right of privacy or whether additional or alternative protection exists." A 4-3 majority ruled that because protecting one's name and likeness from misappropriation "is the heart of the law of privacy," the right to exploit the interest is personal and does not survive death. (Lugosi v. Universal Pictures, 25 Cal. 3d 813, 824 (1979).)

Indeed, the right of publicity has historical roots in privacy: In 1960 William Prosser, then dean of UC Berkeley's law school and legendary authority on all things torts, described it as among the "four distinct kinds" of privacy-invasion causes of action. (Prosser, Privacy, 48 CAL. L. REV. 383, 406 (1960).) Though development of the right of publicity has been "spasmodic" (Lugosi, 25 Cal. 3d at 837 n.14), publicity-related claims historically were adjudicated under privacy law.

Privacy or Property?
Why does it matter whether publicity rights are protected as an aspect of privacy or as something else, such as property? To Prosser, this classification question was pointless: So long as the law recognizes the right, it has value no matter how defined. But the question is important in at least one way: A personal right cannot be assigned or transferred, whereas a property right can.

The right of publicity has worn its privacy garb uncomfortably, almost out of place among its privacy siblings of intrusion, public disclosure of private facts, and false light. The dissenting justices in Lugosi, for example, said the right of publicity was a "marketable product" (25 Cal. 3d at 836), and the majority agreed (25 Cal. 3d at 819-20). But in the minority's view the right of publicity protected an interest different from privacy: an economic one, rather than a right of seclusion, or to "be let alone." And its invasion produced mainly financial losses rather than mental anguish. (25 Cal. 3d at 821.) Even so, the "privacy view" of the right of publicity prevailed.

Shifting Winds
But the "property view" may be resurging. In fact, the right of publicity is now commonly grouped among intellectual property rights, not privacy torts. What's more, after Lugosi the California Legislature enacted a statute giving the right of publicity certain property characteristics - specifically, making it descendible to heirs and assignees. (Cal. Civ. Code ยง 3344.1.)

Developments outside California amplify this trend. This year an Arizona court recognized the right of publicity under that state's law but refused to apply a statute providing that an invasion-of-privacy claim does not survive death. Key to the decision was the court's conclusion that "the right of publicity is more akin to a property right ... than a personal right." (In re Reynolds, 327 P.3d 213, 216 (Az. Ct. App. 2014).) And even before that, one California decision stated that Civil Code section 3344 - the statutory right of publicity - "is now understood as securing a proprietary interest, rather than an invasion of privacy." (Christoff v. Nestlé USA, 152 Cal. App. 4th 1439, 1463 (2007), aff'd in part, rev'd in part, 47 Cal. 4th 468 (2009).)

More recent California decisions conflict. A Southern California trial judge held that the right of publicity, as a subset of privacy, is personal; thus, while a living person can assign her image, only she (not her assignees) could seek damages for misappropriation. (See Discus Dental Photo Cases, JCCP No. 4683 (Los Angeles Super. Ct., tentative ruling issued Sept. 6, 2012).) But on similar facts, an appellate court concluded that a misappropriation-of-likeness claim is transferable too, particularly when it seeks recovery of purely economic - not personal - injuries. (Timed Out v. Youabian, 229 Cal. App. 4th 1001 (2014).)

So which way are the current winds blowing? As with any legal matter, the forecast is almost always uncertain, but in California publicity rights now appear to be clearly assignable.

Peter Perkowski, a partner in the Los Angeles office of Winston & Strawn, concentrates on intellectual property, sports, and entertainment litigation.

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Kari Santos

Daily Journal Staff Writer

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