What do Bela Lugosi, Fred Astaire, and now Bing Crosby have in common? Astaire and Crosby appeared together in the film Holiday Inn, but all three have shaped the law on a deceased personality’s right of publicity.
A person’s right of publicity prevents others from appropriating the person’s name, image, and likeness for commercial gain. This common law right “has been complemented legislatively” by CC §3344. Lugosi v Universal Pictures (1979) 25 C3d 813, 819. Under CC §3344, use of a person’s name, voice, signature, photograph, or likeness in advertising or soliciting gives rise to a right of publicity.
California’s statutory law on publicity rights has developed through the cases of three legendary celebrities.
In Lugosi v Universal Pictures (1979) 25 C3d 813, the court held that the right of publicity doesn’t extend to deceased personalities. In 1984, the legislature extended publicity rights to deceased personalities under CC §3344.1. Bing Crosby died in 1977.
In Astaire v Best Film & Video (9th Cir 1997) 116 F3d 11297, the court held that the statute didn’t apply to deceased personalities who died before January 1, 1985. In 2008, the legislature amended CC §3344.1 to clarify that the statute applied retroactively.
In the meantime, the estate of Bing Crosby’s first wife (who died in 1952) entered into a settlement agreement in 1999 with a company formed by his second wife and estate to pay $1.5 million for a general release of all claims arising from the first marriage.
Here’s the question in the Crosby case: Does that agreement preclude community property claims based on retroactive publicity rights the existence of which was unknown at the time? The court of appeal answered yes, taking the position that the 2008 amendment in response to the Astaire case didn’t create any new rights. Crosby v HLC Props., Ltd. (Jan. 29, 2013, B242089) 2014 Cal App Lexis 94.
There is usually protection from releasing unknown rights—under CC §1542, a general release “does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release.” But in the Crosby case, the agreement expressly waived that protection “to the full extent permitted by the law” and created an exception only for income derived from “works or performances” discovered in the future.
On the common law and statutory rights to publicity, as well as defenses to such claims, turn to CEB’s California Business Litigation, chapter 10. Also find more on publicity rights in the estate planning context in CEB’s Estate Planning for Special Assets §8.35.
Related CEB blog posts:
- Marilyn Monroe and the 50-Year Hitch: Star’s Heirs Bound to New York
- Catastrophe or Choice: Actor’s Estate Plan Comes Under Scrutiny
- Steve Jobs: Private in Life, Private in Death
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