August 14th, 2009 at 06:35am
Under copyright act
I’ve been a regular to several of the major worldwide music conferences over the years, from MIDEM (Cannes) and Popkomm (Berlin) to Canadian Music Week (Toronto). These have not only been a great opportunity to meet and do business with companies in major Western markets, but to also gain a true perspective on the challenges and opportunities specific to those markets. So, it was with quite some excitement that I made my way to Hong Kong for my first trip to Asia, and the 4th edition of Music Matters at the Grand Hyatt from June 2-4 ( http://www.musicmatters.asia ).From the start, it was clear that Music Matters has a distinctly different feel from most other conferences, more of what I’d call a ‘family affair’. Unlike other conferences that offer a plethora of simultaneous, often lightly attended, Music Matters sets a unified program followed by all delegates. The message is clear: If you want to understand the Asian market, here is the information you will need. And whereas the other conferences make participants available to facilitate scheduling meetings in advance, Music Matters takes a completely opposite approach. “We want a free-flowing networking event where everyone has access to everyone else in a open format,” explained Commercial Director Stan Ruza.While I was initially skeptical that this would work, it ended up being a nice and productive change, especially for someone looking to build up a broad base of contacts in Asia. I left with as many contacts as I do from other conferences, even though it was much smaller — composed mostly of decision makers from all the major Asian markets: from Tokyo to Mumbai, Sidney to Kuala Lumpur.Japanese NirvanaWhile I learned a lot about the Asian market in those 2 days, the most surprising “revelation” was actually a question: when will the Japanese music market surpass the US for the #1 position? More shocking were the estimates ranging from only 5-10 years.So what exactly is happening to justify this doomsday scenario (at least from the US perspective)? Simple: the Japanese love music, and are still more than willing to pay for it, whether old or young. Kei Ishizaka, CEO & Chairman of Universal Music LLC Japan and RIAJ (Recording Industry Association of Japan) Chairman presented some facts in his opening keynote “New Strategies & Opportunities in Japan” that might make some in the West red with envy:* Digital sales in Japan have increased from 7.5% in 2005 to 20% in 2008* Mobile is the driver, accounting for 89% digital sales in 2008* Note that this is a slight drop from 94% in 2005, credited to iTunes Japan which, accounts for 50% of online sales* Japan is the only music market where digital sales have made up for losses in physical sales – that is until 2008, when physical losses appear to be outpacing the growth of digital sales* Japanese music consumers appear relatively price inelastic, with a willingness to pay the highest prices of any country for music: up to $4/ringtone and $30+/CD album* The Japanese music industry is still a hit-driven onePerhaps most importantly, the Japanese music industry has not abandoned its most profitable customers: those over 40. The dirty little secret in the US is that according to Soundscan, CD sales have fallen faster amongst those over 40, largely out of neglect by labels focused on the youth market. The Japanese music companies on the other hand, have consciously developed products for the over 40 demographic, which (i) do not download music and (ii) are willing to pay big bucks ($30+) for a high-quality CD (ie music, packaging…).This is not to say that Japan is a complete musical nirvana: more music was acquired via illegal means (407 million tracks) than legal (329 million tracks) on mobile platforms. In 2006, the RIAJ sent over 220,000 takedown notices, and have since filed criminal charges against mobile BBS (Bulletin Board System) site operators. But despite these challenges, the Japanese market has been growing non- stop, with the exception of 2008 when it recorded a measly 3% drop in sales, which is not generally viewed as a trend for the coming years.Get Me A Piece Of That Pie!By this point, you’re probably trying to devise ways to grab of a piece of the Asian pie. Think again! You’re still more likely to make it in the US or Europe than earning any yens or yuans. Just like the Great Wall of China, the Asian market presents nearly insurmountable challenges for even the most savvy western artists.First, the Asian market is completely dominated by local repertoire. Japan is actually one of the more accessible markets, with international repertoire accounting for a little over 20%; though, this has been decreasing over recent years. Look outside of Japan and the numbers are downright depressing. Take the fastest growing markets such as Malaysia, Indonesia, India and China; and their local repertoires accounts for nearly 99% of total.Put simply, Asians want music that they are culturally/linguistically comfortable with and can relate too. Of course there is Hip Hop, Pop, and Rock throughout Asia, but it is all sung in their respective native language, with their cultural nuances. This is in complete contrast with the West where English is, for all intents and purposes, a necessity to become an international star, whether you’re called Shakira, Bjork or The Scorpions.In addition, Asia has no long-tail effect. It is still a hit-driven market, which tends to play against foreign acts. The general consensus among conference speakers and attendees appears to be that Asian consumers are just too busy working to go hunting for new music, to listen to podcasts, or to endlessly surf social media sites.As such, Asian consumers are much more ‘captive’ to recommendations and editorial leads than say the US, where we have a proud tradition of bin-diving for that rare LP – wasn’t the old Napster and today’s MySpace simply the digital shape of this art form? The fact that mobile drives music consumption as opposed to the net, has some part to play in this as well. For the same reason, all-you-can-eat subscription services competing with iTunes are not likely to gain a sufficient subscriber base despite the markets’ sizes.But let us say, for argument’s sake, that you do develop some recognition in an Asian market. How do you expect to generate money from it? You’ve all heard of the scourge of piracy in Asia, so I don’t want to rehash the topic. Let me just leave you with this fact from Google China’s Bin Lin: of the 7,000+ music services in China, only 0.1% of their offerings are legal downloads.Licensing isn’t much help either. Unlike North America and Europe, where Performing Rights Organizations (PROs) have a long history, collection agencies are relatively young in Asia and have yet to get a grip on the digital market. As a consequence, there is a lot of mistrust between publishers and PROs, which significantly hampers licensing opportunities. If one takes the Indian market for example, where 70% of music consists of soundtracks (courtesy of Bollywood), music labels have been collecting all relevant rights until recently.Even the mature Japanese market has its eccentricities, such as songs being available free of sync licensing for commercial purposes up to one year after its release. As a consequence, success in the Japanese market may well depend on a willingness to waive sync rights for commercial use, representing an important way to break a song, explained Kimitaka Kato, Universal International Managing Director.Are You Depressed Yet?Frankly, I’m not! My recommendation is too look at the Far East as the Wild West: full of opportunity for those with the patience and guts too tough it out. The first lesson is that you are nobody unless you are here. Thus I made the trip to Music Matters and then to Beijing, where I met a successful music pioneer, Kenny Bloom.Bloom, who was kindly referred to me by NARIP’s (National Association of Record Industry Professionals) Tess Taylor, came to China over 20 years ago to launch Warner Music. He now runs Mogo (www.mogo.com.cn), one of the coolest video sites in China serving the young, hip (undeserved) Chinese urban youth. So why is he still in China with everything I previously mentioned?(i) China has the largest internet population (around 300 million, ie, the entire US population)(ii) Around 80% of Chinese internet users are music consumers (240 million)(iii) Music was the #2 search term for the last 3 years(iv) At $50 billion annually, China is now the 2nd largest advertising market (It just recently surpassed Japan for the #2 position)He also has a different take on the Chinese consumer. According to Bloom, it’s not so much that the Chinese are busier or harder working, but that they are in an underdeveloped media market. Media in China (TV, radio and to some extent the internet) is directly or indirectly controlled by the Communist government.As The Economist recently noted “the proliferation of channels for media, information and entertainment offers unbounded scope for the [Chinese Communist] party to get its message across, abetted by commercial operators.” One consequence of this is the sanitizing of media in order to appeal to a national audience that includes rural peasants as well as urban dwellers. It’s a process not unlike our over-conglomeratized radio or broadcast TV markets, which is suffering from competition by more original and niche programming on cable, satellite and the internet.The upside is that this presents unique opportunities to serve the growing chique urban class, which the centralized media market is incapable of satisfying; a segment Bloom estimates to be 40 million and growing. By serving this high-value segment with high-quality, original video programming, Mogo is able to attract big-name brands such as Converse that place a premium on this demographic. To some extent, Mogo is trying to do for China today what MTV did for the U.S. in the 80’s.Another Beijing-based company to watch is Yobo Music (www.yobo.com), a recommendation and discovery site for music. Its founder Allen Guo was perhaps the most eloquent at Music Matters on the need to offer Chinese consumers a variety of models and services that enhance their music experience. Only by meeting the various needs of different consumer segments — as the Japanese music market has done so successfully — will alternatives to piracy be sustainable.Future revenues will be driven by value-added music services rather than easily pirated downloads or ringtones. And while advertising may seem a panacea to many in the U.S. and China (did I mention they are the 2 largest advertising markets), Allen noted some success by Yobo Music with other revenue models such as micro-payments and music gifting.The Silver LiningIn the end, the Wild West was tamed and I believe the same will happen with China. America in its first 50 years was home to pirates (ie., privateers) and some of the worst copyright/patent infringers of the time. This is part of what lead to the growth of the young, scrappy republic. But as it matured, and itself became more of a creator/innovator, America began to place increasing value on protecting copyright/patents.The same will be true for China. As Bloom noted, “How do you expect a people that had no concept of private ownership 10 years ago to understand, let alone value, something like copyright?” In other words, not only has copyright been a foreign concept, it would have been counter-productive to the country’s development. But as it begins to export more cultural goods and develop new patents, that trend will reverse as surely as it did in the US. The only question is whether it can put the genie back in the bottle when the time comes.I happened to arrive in Beijing on the 20th anniversary of the Tiananmen Square incident. Sure enough, I could not access Twitter or YouTube, and any coverage on foreign TV channels, like BBC were blocked by a blank screen. Once the Communist Party determines that copyright is something worth putting the effort towards protecting, I wouldn’t give those 7,000+ so-called music services much of a chance.
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August 13th, 2009 at 12:35am
Under copyright act
Creation of the Right of Publicity in California
The “right of publicity” is generally defined as the right to control or prevent the unauthorized use or commercial exploitation of one’s name, likeness, voice or “personality.”[1] The right of publicity evolved from the right of privacy, which itself has evolved dramatically over more than a century. In 1890, Samuel D. Warren and Louis D. Brandeis published a seminal article in the Harvard Law Review entitled The Right to Privacy,[2] in which they argued for a remedy for those injured by unauthorized public disclosure of truthful but embarrassing private facts.[3]
By the mid 1900’s, some courts and state legislatures had adopted some elements of the Brandeis-Warren theory. However, the question arose as to how to apply these rights to celebrities who had voluntarily and affirmatively sought the spotlight.
Second Circuit Judge Jerome Frank answered that question in 1953 when he coined the term “right of publicity” in the case of Haelan Laboratories Inc. v. Topps Chewing Gum, Inc. [4] The Haelan case asked whether a baseball player could assign exclusive rights to produce a card with his photograph on it to one single baseball card manufacturer.[5] The court determined that prominent persons do possess a “right of publicity”[6] which was an assignable interest, unlike the strictly personal – and therefore non-assignable — right to privacy.[7]
Judge Frank’s opinion was followed by a prominent article by Professor Melville B. Nimmer that analyzed the right to publicity as an assignable property right.[8] Nimmer explained that a mere right to privacy did not sufficiently address the issues unique to celebrities; while the right to privacy protected individuals from indignity and embarrassment, the right to publicity dealt with a celebrity’s ability (and, theoretically, anyone’s ability) to protect the commercial value of his or her image and identity.[9]
California first codified the right of publicity in 1971, when the California legislature enacted Civil Code section 3344, which enables recovery by any living person whose name, photograph, or likeness has been used for commercial purposes without his or her consent.[10] California courts have recognized both the statutory and the common law right of publicity. [11]
However, both the common law and statutory rights of privacy were only available to living plaintiffs; the right was not freely descendible and thus expired by operation of law upon the death of the person claiming the right.[12] This very issue lay at the heart of two seminal companion cases decided in 1979: Lugosi v. Universal Pictures[13] and Guglielmi v. Spelling-Goldberg Productions.[14] In those cases, the California Supreme Court determined that the heirs of deceased celebrities had no statutory protections against posthumous exploitation of the celebrity’s image.
In Lugosi, the heirs of actor Bela Lugosi (best known for playing the title role in the 1930 movie, “Dracula”) sued to enjoin and recover profits from Universal Pictures for licensing Lugosi’s name and image on merchandise.[15] The California Supreme Court upheld the decision of appellate court in finding that the right to exploit one’s name and likeness is personal and must be exercised, if at all, by him during his lifetime.[16]
Similarly, in Guglielmi, the California Supreme Court cited to and relied upon its opinion Lugosi in holding that Rudolph Valentino’s heirs could not obtain an injunction or damages from the defendant because Valentino’s right of publicity was not descendible under California law.[17] Because Valentino had not exploited his name and likeness during his lifetime, others could now use it without liability to Valentino’s heirs.[18]
Courts outside of California honored the Lugosi and Guglielmi decisions as well in applying California law. In Groucho Marx Productions, Inc. v. Day and Night Company, Inc.[19], the Second Circuit held that the rights of publicity were not descendible under California law. In that case, the Marx Brothers’ assignees sued a production company for interference with the assignees’ publicity rights; the production company incorporated three characters that strongly resembled the Marx Brothers in its Broadway musical, “A Day in Hollywood/ a night in the Ukraine.” The federal district court in New York had applied New York law, determining that New York recognized a descendible right to publicity and granting summary judgment to the plaintiffs.[20] The Second Circuit, however, reversed that decision, holding that the descendibility issue was governed by California law and as a result, the plaintiffs had no right to relief.[21]
Legislating a Post-Mortem Right of Publicity
The holdings in Lugosi and Guglielmi precipitated legislation designed specifically to create a statutory descendible right to publicity. In 1984, the California legislature enacted Civil Code section 990 (renumbered as section 3344.1 in 1999), creating a post-mortem right of publicity for “deceased personalities,” – individuals whose names, voices, signatures, photographs, or likenesses had commercial value as of the time of their death.[22] This legislation became effective January 1, 1985.
Section 990 explicitly stated that the right of publicity is a property right, “freely transferable, in whole or in part, by contract or by means of trust or testamentary documents” whether that transfer occurs before, by or after death of the personality.[23] The statute held that absent an explicit transfer of this right, it automatically goes to the statutory/ intestate heirs of the deceased (spouse, children, parents).[24] If the celebrity fails to transfer the right explicitly and dies without any statutory heirs, the right of publicity terminates.[25] Otherwise, the extended right of publicity would expire 50 years after the death of the deceased personality.[26]
In an attempt to maximally preserve First Amendment protections for creative outlets, the new statutory provision exempted from liability plays, books, magazines, newspapers, musical compositions, films, and radio and television shows that used a deceased celebrity’s likeness, name, voice, etc.[27]
The registered owner of the posthumous rights to The Three Stooges comedy act relied on section 990 to obtain damages against an artist who reproduced his charcoal drawings of the act on lithographs and t-shirts.[28] The artist had claimed that his artwork was creative and transformative enough to warrant First Amendment protection against the plaintiff’s right of publicity claim, just like the specifically listed exemptions in the statute. The court agreed that when a work of art is so transformative that the value of the work derives primarily from the skill and creativity of the artist rather than from the fame of the celebrity depicted, the work may be protected by the First Amendment.[29] However, the court determined that Saderup’s depictions were more literal than transformative — a clear attempt merely to exploit the Three Stooges’ fame — and therefore First Amendment protection did not apply.[30] If Saderup wanted to continue to use these images, he needed to obtain the consent of the right of publicity holder.
However, that same list of exempt uses in section 990 posed new problems, exemplified in two main cases:
In Joplin Enterprises v. Allen,[31] a federal district court applied section 990 to find that a two-act biographical play about deceased singer Janis Joplin was not actionable. Joplin’s devisees alleged that the play constituted copyright infringement as well as misappropriate of Joplin’s privacy and publicity rights.[32] The court determined that section 990 applied only to unauthorized “merchandise, advertisements and endorsements,” and it explicitly exempted plays from liability.[33]
The Ninth Circuit similarly exempted an instructional dance video from liability under section 990 in Astaire v. Best Film & Video Corp.[34] In Astaire, the widow of famed dancer Fred Astaire sued a videotape manufacturer for using Fred Astaire’s image in a series of dance instructional videotapes – each tape opened with about 90 seconds of footage of Astaire. Mrs. Astaire claimed the company violated her statutory right to control the use of her husband’s name and likeness under section 990.[35]
The Central District of California agreed with Mrs. Astaire, finding that the company used Astaire’s image “on or in products, merchandise, or goods” in violation of the statute.[36] But the circuit court reversed and remanded, finding that the pre-recorded videotapes fell into the “film” exemption of section 990(n).[37] Indeed, the court determined that the film exemption applied even if the use was an advertisement or commercial announcement.[38]
The Astaire Amendment: Deleting exempt uses
After losing her difficult and expensive lawsuit, Mrs. Astaire teamed up with the Screen Actors Guild to sponsor legislation that would clarify and expand the post-mortem right of publicity. That bill, SB 209, passed in 1999 and became known as the “Astaire Celebrity Image Protection Act.”
Most significantly, the Astaire Amendment eliminated the list of exempt uses of deceased celebrity likenesses, thereby substantially increasing the types of uses for which consent of the celebrity’s heirs is required. The bill also extended the descendible right of publicity from 50 years to 70 years following the celebrity’s death.[39]
Despite these amendments to clarify and expand the descendible posthumous right of publicity, there remained a gap in the law that was revealed by two similar cases regarding the posthumous rights of Marilyn Monroe: Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc.[40] and Shaw Family Archives, Ltd. v. CMG Worldwide, Inc.[41] (collectively, the “Monroe cases”). When Marilyn Monroe died, she left the residue of her estate to her acting coach, Lee Strasburg, who, upon his death, left most of his estate to his wife, Anna Strasberg.[42] Anna Strasberg then transferred her interest in Monroe’s estate to Marilyn Monroe LLC, who licensed CMG Worldwide, Inc. to use Monroe’s images and likenesses.[43] In these two actions, CMG sued other parties for their unauthorized use of Monroe’s image.
In the Monroe cases, both courts interpreted section 3344.1 as prohibiting publicity rights from passing by will if the personality died prior to January 1, 1985.[44] In other words, the statutory descendible right of publicity did not exist when Monroe died, so, by operation of law, it could not have been a property right that she possessed upon death.[45] Because Monroe did not own this property right at the time of her death, she could not have transferred it in the residuary clause in her will.[46] Moreover, even if Monroe did possess the right, section 3344.1 only enables transfers to statutory heirs – Monroe had no statutory heirs, so her right would terminate in any event.[47] Both courts ruled against CMG on summary judgment.
The holdings in the Monroe cases had unsettling implications. Many deceased celebrities and their devisees left or transferred residual estates to charitable organizations, which relied in part on their ability to license the famous images for fundraising purposes. The Monroe holdings effectively removed from these organizations many rights they had relied upon. Reflecting these concerns, the federal district court for the Central District of California wrote:
The court reaches this conclusion with some reluctance because … at least some personalities who died before passage of the California … right of publicity statute[] left their residuary estates to charities, which will be “divested” of those rights under the court’s holding… As noted, however, nothing in this order prevents legislatures from enacting right of publicity statutes so as to vest the right of publicity directly in the residuary beneficiaries of deceased personalities’ estates or their successors-in-interest.[48]
The 771 Amendment: Enabling retroactive transfers to residual estates
The California legislature wasted no time following the suggestion of the Milton H. Greene court. Merely six weeks after that opinion was published, State Senator (and former child actor) Sheila Kuehl[49] fast-tracked through the legislature[50] Senate Bill 771, designed specifically to clarify the scope of Cal. Civil Code section 3344.1 and to abrogate the decisions in the Monroe cases.[51]
The somewhat controversial SB 771 accomplished several goals. First, it explicitly stated that a deceased celebrity’s right of publicity applies to individuals whether or not they died before January 1, 1985.[52] The amendment deems, retroactively, that a deceased celebrity’s right of publicity existed and was transferable even if they died before the enactment of section 3344.1.[53] In the event the celebrity did not expressly transfer this right (and why would they, if they didn’t know it existed?), the right became part of the deceased personality’s residual estate and was transferred to whomever received those assets.[54] The resulting owner of that right has 70 years from the date of the celebrity’s death to control use of the celebrity’s image for commercial purposes.[55]
Despite the efforts to get SB 771 drafted and passed quickly, it still did not help CMG Worldwide and Marilyn Monroe LLC (“MMLLC”). On November 21, 2007, armed with the newly-passed SB 771, CMG and MMLLC filed a motion for reconsideration in the Milton H. Greene case, which the federal district court granted.[56] The court agreed that, due to the passage of SB 771, CMG and MMLLC did have standing to assert Monroe’s posthumous right of publicity under California law.[57] However, after a detailed analysis, the court determined that Monroe was domiciled in New York, not California, at the time of her death.[58] Because New York did not recognize either a common law or statutory posthumous right of publicity in 1962 and because, unlike California, New York has not passed a statute to recognize such rights retroactively, Monroe did not possess the right to publicity when she died and therefore could not have transferred it in her will.[59]
Right of Publicity Laws in Other States
Though the right of publicity is derived from the Constitutional notion of the right of privacy, it is created and enforced via state laws. At least nineteen states have developed and passed a statutory right of publicity[60]; not all of them treat the right as descendible.[61] At least eleven other states only recognize a common law right to publicity.[62] The American Law Institute’s Third Restatement of Unfair Competition (1995), section 46, also recognizes the right of publicity as a separate legal theory.
The state of Indiana actually has the most comprehensive right of publicity statute on the books.[63] Enacted in 1994, Indiana’s law protects a deceased individual’s right of publicity for 100 years after his death and includes protections for the celebrity’s signature, photograph and gestures, as well as the more typical name, image and likeness.[64] Otherwise, Indiana’s law is similar to Cal. Civil Code section 3344.1.
New York, on the other hand, gives celebrities a statutory claim against the use of only their “name, portrait, or picture…. for advertising purposes or for the purposes of trade.”[65] New York Senator Martin Golden and Assemblywoman Helene Weinstein presented SB 6005/ Assembly Bill A08836[66] to the New York Legislature. While early attempts were made to rush that bill through the New York legislature, the bill was halted, apparently due to concerns that it is overly broad in nature, posing potential conflicts with Constitutional rights and other rights.[67]
Potential Negative Implications of SB 771
The New York legislature’s hesitancy to rush right into endorsement of its bill — the identical twin to California’s SB 771 — reflects some of the real concerns about and potential problems resulting from SB 771.
Because SB 771 is retroactive in nature, it may grant rights to some people retroactively while taking away from others rights that they had relied upon by entering into contracts and otherwise lawfully exploiting certain images.[68] As a result, this area is certainly ripe for testing, with the strong possibility of some untenable judicial results and, subsequently, more statutory amendments.
The statute attempts to preempt some future litigation by including this condition: If a statutory heir[69] exercised his or her rights to exploit a deceased celebrity’s likeness before May 1, 2007, and that exercise was not challenged successfully in court by a transferee of the celebrity’s residual estate, the residual estate transferees cannot use SB 771 to now come back and claim that right to publicity.[70] In fact, in this factual scenario, the residual estate is forever barred from claiming the right of publicity, which remains with the statutory heirs throughout the statutory period.[71]
However, that statutory provision does not address what will certainly be the more common situation – when the transferees of a celebrity’s residual estate file suit for damages and an injunction against a person or company that lawfully used that celebrity’s image or likeness for commercial purposes long before enactment of SB 771. Due to the retroactive nature of SB 771, the residual estate could theoretically reach back many years and disgorge substantial profits from an entity whose use had been legal throughout that time, as well as permanently enjoin future use by an entity who may have built an entire brand around the use.
Because the right to publicity differs so dramatically from state to state, and because there is so much overlap between right to publicity issues and issues dealing with trademark and copyright law, First Amendment protections, and other laws, several groups are pressing for Congressional enactment of a federal right to publicity law. The proposal by the International Trademark Association, for example, would amend the Lanham Act to add a federal right of publicity that would specifically preempt all state law, both statutory and common law.[72]
The INTA’s proposed federal law does include a descendible and transferable right of publicity effective for a period of time after a celebrity’s death.[73] However, it also includes a provision that the California’s law lacks – a “grandfather clause” that protects the rights of prior users.[74]
Conclusion
Undoubtedly, California’s right of publicity statute remains on the frontlines of the evolution of this legal concept. As home to an abundance of celebrity’s, California’s statute is frequently tested and amended when those tests reveal a gap in the law. Senate Bill 771 represents only the latest step in the evolution, but it probably goes too far, creating more legal problems than it may solve.
As a result, SB 771 certainly will not be the last word on California’s statutory descendible right of publicity. Whether ultimately preempted by a new federal law or not, the California statute will need to address the rights of prior users who acted in reliance on their pre-SB 771 rights and are harmed as a result of this retroactive bill. Future litigation on this very issue, likely followed by yet another legislative amendment, is predictable.
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[1] See, e.g., Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 99. 988-989, n.6 (9th Cir. 2006).
[2] Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
[3] Id. at 213.
[4] 202 F.2d 866, 868 (2nd Cir. 1953).
[5] Id. at 867.
[6] 202 F.2d at 868.
[7] Id. at 868-869.
[8] Melville B. Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203 (1954).
[9] Id. at 203-04.
[10] Cal. Civil Code. Section 3344(a). The statute exempts from liability uses made in connection with news, public affairs, sports broadcasts or accounts, and political campaigns. Cal Civil Code, section 3344(d).
[11] Miller v. Glenn Miller Prod., Inc., 454 F,3d 975, 988-89, n.6 (9th Cir. 2006).
[12] Lugosi v. Universal Pictures, 25 Cal. 3d 813, 820-822 (1979).
[13] Lugosi, supra.
[14] 25 Cal. 3d 860 (Cal. 1979).
[15] Lugosi, 25 Cal. 3d at 817.
[16] Id. at 822-823.
[17] 25 Cal. 3d at 864.
[18] The implication is clear that had Lugosi and Valentino actually contracted with the defendants regarding use of their likenesses during their lifetimes, the heirs would have the right to enforce those contracts posthumously. In these cases, however the defendants were using the images without the benefit of a contract that related to use of the images.
[19] 689 F.2d 317 (2d Cir. 1982).
[20] 689 F.2d at 319.
[21] Id. at 323.
[22] Cal. Civil Code section 3344.1(h).
[23] (Former) Cal. Civil Code section 990(b) (now amended and renumbered)
[24] Id. at 990(d).
[25] Id. at 990(e).
[26] Id. at 990(g).
[27] Id. at 990(n).
[28] Comedy III Productions Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001).
[29] 25 Cal. 4th at 407.
[30] Id. at 409.
[31] 795 F. Supp. 349 (W.D. Wash. 1992).
[32] Id. at 350.
[33] Id. at 351.
[34] 116 F.3d 1297 (9th Cir. 1997), as amended by 136 F. 3d 1208 (9th Cir. 1998).
[35] 116 F.3d at 1299.
[36] Id. at 1300.
[37] Id. at 1301-1302.
[38] Id. at 1302.
[39] Cal. Civil Code section 3344.1(g).
[40] Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc. (unreported), (No. CV-05-02200MMM), 2008 WL 655604 (C.D. Cal. Jan. 7, 2008), summary judgment affirmed by Milton H. Greene Archives v. CMG Worldwide, Inc., ___ F. Supp. ___. 2008 WL 1922980, No. CV 05-2200 MMM (C.D. Cal. March 17, 2008).
[41] 486 F. Supp. 2d 309 (SDNY 2007).
[42] Shaw, 486 F. Supp. at 312.
[43] Id.
[44] Id. at 317; Milton H. Greene, 2008 WL 655604, at *1.
[45] Shaw at 319; Milton H. Greene, 2008 WL 655604, at *1.
[46] Shaw at 319.
[47] Shaw at 319; Milton H. Greene, 2008 WL 655604, at *1-2.
[48] Milton H. Greene court’s May 14, 2007 Order granting summary judgment in favor of plaintiffs, at 36:15-20, n.38 and n.80.
[49] The bill was drafted and sponsored by the Screen Actors Guild at the urging of CMG. It received strong support from the Cecil B. DeMille Foundation, the Marilyn Monroe LLC, the Motion Picture and Television Fund, [John] Wayne Enterprises and the California Labor Federation.
[50] The bill passed through the California legislature on September 7, 2007 and was signed into law by governor Arnold Schwarzenegger on October 10, 2007. It took effect January 1, 2008.
[51] Section 2 of Stats. 2007, c. 439 (S.B. 771).
[52] Cal. Civil Code section 3344.1(b).
[53] Id.
[54] Id.
[55] Cal. Civil Code section 3344.1(g).
[56] Milton H. Greene Archives v. CMG Worldwide, Inc., ___ F. Supp. ___. 2008 WL 1922980, No. CV 05-2200 MMM (C.D. Cal. March 17, 2008).
[57] ____ F. Supp. at ____; 2008 WL 1922980 at *3.
[58] More specifically, the court found that authorized representatives of Monroe’s estate had repeatedly represented in various forums that Monroe was a resident of New York, not California, and was only in California temporarily for work, with no intent to remain in California. The court performed a lengthy and detailed analysis to determine that CMG was barred by judicial estoppel from asserting that Monroe was domiciled in California and therefore possessed a right of publicity under California laws. 2008 WL 1922980, at *33 – *34.
[59] Id. at *3.
[60] These 19 are: California (Cal. Civ. Code section 3344 and 3344.1), Florida (Florida Stat. section 540.08), Illinois (Ill. Rev. Stat. ch. 765 section 1075/1 et seq.), Indiana (Ind. Code section 32-36-1 et seq.), Kentucky (Ky. Rev. Stat. Ann. Section 391.170), Massachusetts (Mass. Gen. L., ch. 214 section 3A), Nebraska (Neb. Rev. Stats. Section 20-202), Nevada (Nev. Rev. Stat. sections 597.770 – 597.810), New York (N.Y. Civil Rights Law sections 50, 51), Ohio (Ohio Rev. Code Ann. Sections 2741.01 et seq.), Oklahoma (Ok. Stat., Title 12, sections 1448 and 1449), Pennsylvania (Pa. Cons. Stat. Title 42, section 8316), Rhode Island (R.I. Gen. Laws sections 9-1-28 and 9-1-28.1(a)(2)), Tennessee (Tenn. Code Ann sections 47-25-1102 to 47-25-1107), Texas (Texas Prop. Code Ann. Section 26.001 et seq.), Utah (Utah Code Ann. section 45-3-1 et seq.), Virginia (Va. Code section 8.01-40), Washington (Wash. Rev. Code Ann. 63.60-010 et seq.) and Wisconsin (Wisc. Stat. section 895.50(2)(b)).
[61] The following states’ right of publicity statutes do not appear to grant rights after death: Massachusetts, Nebraska, New York, Rhode Island, Pennsylvania, Utah, and Wisconsin.
[62] They are: Alabama, Arizona, Connecticut, Georgia, Hawaii, Maine, Michigan, Minnesota, Missouri, New Jersey, and Oregon.
[63] Ind. Code. Ann. Sections 32-36-1 et seq.
[64] Id. at 32-36-1-7 and 32-36-1-8(a).
[65] N.Y. Civ. Rights Law sections 50 and 51 (McKinney 2007).
[66] The New York bill is essentially identical to California’s SB 771. Like SB 771, it was introduced immediately after publication of the Monroe decisions and was similarly backed by CMG. There were rumors that CMG had hired a lobbyist specifically to assist the bill’s expedition.
[67] “Marilyn Monroe Historic Legislation Halted – Surprise to CMG and MMLLC”, PR-inside.com, June 25, 2007, located at http://www.pr-inside-com/marilyn-monroe-historic-legislation-halted-r161341.htm#.
[68]David Marcus, attorney for the Shaw Family Archives, claims (without specificity) that SB 771 conflicts with California laws relating to wills and estates. New York intellectual property attorney Nancy Wolff asserts that the California legislature violated its own procedural rules when it rushed SB 771 through. (“California Adopts New Right of Publicity Law,” pdnonline.com, October 12, 2007 (located at http://www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003658099). If either or both of these assertions are true, they would provide additional grounds for legal challenges to SB 771.
[69] Other than someone who was specifically disinherited by the deceased personality. Cal. Civil Code section 3344.1(o).
[70] Id.
[71] Id.
[72] See the INTA’s Adopted Resolution on the Federal Right of Publicity at http://www.inta.org/index.php?option=com_content&task=view&id=285&Itemid=153&getcontent=3.
[73] Id.
[74] Id.
Mr. Zuber is a partner of
Zuber & Taillieu LLP, where he specializes in
patent and
trademark transactions. He earned a J.D. from Columbia Law School, an M.P.P. from Harvard University, and a B.S. in engineering from Rutgers University, where he graduated with highest honors.
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