The famous novelist Stephen King, author of The Shining and dozens of similar “horror” books, made the point effectively when, after achieving fame, he sent out manuscripts to various publishing houses using a pen name unassociated with himself. His work was universally rejected, though the same works, sent out under his own name, were universally accepted.
We all know that reputation matters, but in this celebrity conscious world, one’s celebrity status is an asset worth tremendous amounts of money. And the status is not limited to merely obtaining work, but in sponsoring and authenticating products and persons. It is a simple fact that many movie franchises make more money from sponsored products, such as toys, than they do from the actual films. Sports figures carefully hone their image to please the producers of sports products since they often make more income from such sponsorships. A scandal affecting the reputation of a sports figure can end their sponsorship and income overnight.
But what happens if a celebrity dies? Does this valuable asset disappear so that his or her heirs achieve no benefit from it? California, home to many celebrities, confronted that issue by statue, though many other jurisdictions had confronted it via case law, and this article discusses such law.
The Basic Law in California:
The Celebrities Rights Act is a 1985 California statute which allows a celebrity's personality rights to survive his or her death. The Act nullified an earlier holding in the 1979 case before the California Supreme Court in Lugosi v. Universal Pictures which held that Bela Lugosi's personality rights could not pass to his heirs, as a copyright would have. The court had ruled that any rights of publicity, and rights to his image, terminated with Lugosi's death.
That case, in turn, stemmed from numerous other cases that had nullified the rights of heirs to protect (and exploit) the personalities of famous relative.
- In 1998 Princess Diana's estate sued the Franklin Mint for selling products bearing her likeness. The lawsuit filed May 18, 1998 in U.S. District Court in Los Angeles alleged that the Franklin Mint "failed to obtain consent to use Princess Diana's identity and trademark ... and embarked on a campaign to profit from Princess Diana's death." On June 27, 2000, the U.S. District Court for the Central District of California issued a summary judgment in favor of the Franklin Mint. Franklin Mint then sued Diana's estate's lawyers for "malicious prosecution of trademark" and in January 2011 the law firm settled with a twenty-five-million-dollar payment to the former owners of the Franklin Mint.
- And in Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y., 2007) the New York court ruled in 2007 that as to Marilyn Monroe, because she died before California's Celebrity Rights Act was passed in 1985, and the state of New York does not recognize a right of publicity after the artist's death, her name, image, and voice were in the public domain in the states of California and New York. And they would also be in the public domain in any state that, at the time of Monroe's death in 1962, did not recognize a right of publicity that survived the artist's death. (Note that in response to that court’s ruling, California passed legislation that created descendible rights of publicity that last 70 years after death, retroactively for any person deceased after January 1, 1938. A similar law failed in the New York Legislature.)
In 1985 California addressed these cases in California Civil Code section 3344. That code section relates to the publicity rights of living persons, while Civil Code section 3344.1, known as the Astaire Celebrity Image Protection Act, grants statutory after death rights to the estate of a "deceased personality", where:
- that personality had been "any natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death",
- any person using such personality's "name, voice, signature, photograph or likeness on or in products, merchandise or goods" without prior consent was liable to be sued for damages and profits arising from the unauthorized use, and
- such prior consent may only be given by persons to whom the personality had transferred such power by contract or trust prior to his death, or by trust or will after his death, or, where no such latter provision was made, his spouse, children, and/or grandchildren but
- "a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works, shall not be considered a product, article of merchandise, good, or service if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work.”
And in 1999, the period of protection was extended from fifty years after a person's death to seventy years. Similar laws have been enacted by 12 other states in the United States.
Note the exception in the final point above. This allows reference to the personality in both news articles, other works of art or fiction/drama that does not merely seek to market the personality. Thus, a dish with Diana’s likeness would require consent from her heirs but a novel in which she appears as a character or a magazine article about her which had pictures of her would not.
A celebrity known to the writer once commented that she was aware that she has a fragile asset, especially for a woman, which could depreciate to nothing in months or years and had to be renewed and “stoked” constantly…but was worth a small fortune. Not only in possible contributions to her cause, but in influence with third parties who wanted contact with a well-known figure.
She had spent years developing the skill required to remain a public figure, had hired public relations experts to advise and get her picture in magazines and newspapers and once admitted she spent in excess of a hundred thousand dollars a year simply to stay in place and keep her name before the public. And this was a “minor” celebrity. The cost for major celebrities is many times that and the reason they spend the money is simple: it makes money.
What the California statute does is simply make the asset of “celebrity status” similar to any other asset developed in business. Like a copyright or trademark, successful creation of a celebrity status is now an asset that can pass to the next generation and survive death…thus can be sold to third parties and expected to last seventy years after death…or more.