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.
It’s hard to argue that a decedent who died at home was a resident of somewhere else, but the estate of Marilyn Monroe, who was found dead in her Brentwood home in 1962, has always maintained that she was a domiciliary of New York. The estate’s executor took that position in probate proceedings and in dealings with California tax authorities, which found that most of Monroe’s assets were exempt from state inheritance taxes. But now Monroe’s heirs are claiming she was domiciled in California because they prefer California law on the right of publicity.
As modern technologies evolve, new areas for right of publicity and right to privacy litigation emerge. Video games featuring representations of actual people present interesting issues — and not just hypothetical ones. In the Northern District of California, a case is pending for the “blatant and unlawful use” of NCAA student athlete likenesses in video games. In a preliminary ruling, the court held the defendant liable for violating the players’ rights of publicity. See Keller v Electronic Arts, Inc. (ND Cal, Feb. 8, 2010, No. C 09-1967 CW) 2010 US Dist Lexis 10719.