California Intestate Succession

Creating 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 his name, image, voice or" personality ". [1] The right of publicity has evolved from the right of privacy, which has evolved considerably over 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 plead for a remedy for those injured by the unauthorized public disclosure of embarrassing private facts, but truth [3].

In the mid-1900s, some courts and state legislatures have adopted some elements of the theory of Brandeis-Warren. However, the question arises as to how to apply these rights to celebrities who had voluntarily and affirmatively sought the limelight.

Second Circuit Judge Jerome Frank answered this question in 1953 when he coined the term "right of publicity" in the case Haelan Laboratories Inc. v. Topps Chewing Gum, Inc.. [4] The case Haelan whether a baseball player could assign exclusive rights to produce a card with his picture on it for a manufacturer baseball card only. [5] The Court ruled that eminent personalities who have a "right of publicity" [6], who had an interest transferable, unlike the strictly personal - and therefore inalienable - the right to privacy [7].

Judge Frank's opinion was followed by an article by a leading Professor Melville B. Nimmer who analyzed the right of publicity as a property right transferred. [8] Nimmer explained that a mere right to privacy does not sufficiently take into account the particular problems of celebrity, while the right to privacy protects individuals from the indignity and embarrassment, right of publicity dealt with the ability of a celebrity (and, theoretically, the ability of someone) to protect the commercial value of its image and identity [9].

California first codified the right of publicity in 1971 when the California legislature enacted Civil Code section 3344, which allows the recovery by any living person whose name, photograph, or likeness has been used for commercial purposes without his consent [10]. California courts have recognized both by law and common law right of publicity. [11]

However, the common law and statutory rights of privacy were available only for applicants for life, the law has not been freely and thus descendible expired under the law on the death of the person claiming law. [12] This issue was at the very heart of two companion cases decided in the seminal 1979: Lugosi v. Universal Pictures [13] and Guglielmi v. Spelling Goldberg Productions. [14] In these cases, the California Supreme Court has determined that the heirs of deceased celebrities had no legal protections against exploitation posthumous celebrity image.

In Lugosi's heirs actor Bela Lugosi (best known for playing the title role in 1930 film "Dracula") sued for an injunction and to recover profits from Universal Pictures for licensing Lugosi and name of The image on the goods [15]. The California Supreme Court Court upheld the decision of the Court of Appeal finding that the right to exploit his name and likeness is personal and should be exercised, if necessary, by him during his lifetime [ 16].

Similarly, Guglielmi, the California Supreme Court cited and relied on Lugosi's opinion holding that Rudolph Valentino heirs could not obtain an injunction or damages to the defendant because the right of publicity has Valentino descendible not under the law of California [17]. Because Valentino had not exploited his name and image during his lifetime.