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California Adopts New Right of Publicity Law

October 12, 2007

By David Walker

A controversial bill granting retroactive rights of publicity to dead celebrities in California has been signed into law by governor Arnold Schwarzenegger. The governor signed the bill, SB 771, on October 10. The law takes effect on January 1.

Passed by the California Assembly last month, SB 771 was intended to give Marilyn Monroe’s estate—and the beneficiaries of any other California celebrity who died within the last 70 years—the retroactive right to demand payment for commercial use of images of those dead personalities.

Previously, California law granted that so-called right of publicity only to celebrities who died after December 31, 1984. On the basis of that law, two federal courts ruled in separate cases earlier this year that owners of images of Marilyn Monroe could exploit their images commercially without permission from Monroe’s estate. Monroe died in 1962.

One of the court cases involved the Shaw Family Archives. The other involved the Milton H. Greene Archives. Both successfully challenged the right of Monroe’s estate, MMLLC, and its agent, CMG, to demand payment whenever they licensed their Monroe images for use in films, on TV, or on coffee mugs, t-shirts, calendars and other merchandise.

After losing in court, CMG lobbied the Screen Actor’s Guild to push for a change in the California law so MMLLC and CMG could resume charging the fees. The legislation sailed through both houses of the California legislature. And few were surprised that Schwarzenegger, a celebrity screen actor himself, signed the bill when it reached his desk.
Opponents of the bill say it is subject to various challenges.

“There are a whole host of issues. This is far from over,” says Surjit Soni, attorney for the Milton H. Greene Archives. “There will be many lawsuits.”

For instance, owners of Monroe images insist she was not a resident of California, so her estate can’t claim right of publicity under SB 771 or any other California law. (Instead, they say, she was a resident of New York State, which has no right of publicity law on the books).

“This is only going to force courts to make a determination on where Marilyn Monroe was domiciled,” says attorney David Marcus, who represents the Shaw Family Archives. “That might mean more [legal] work for us, but ultimately the outcome will be the same: her estate doesn’t own any rights of publicity.”

Marcus says another problem with SB 771 is that it conflicts with other California laws pertaining to wills and estates.

Meanwhile, though, the legal uncertainty created by the new law is likely to scare clients away from archives such as Shaw and Greene.

“We’re doing business, but the problem is still there,” says Milton H. Green Archive owner Joshua Greene. “CMG is threatening clients. So it does hurt business in that sense.”

He anticipates a renewed effort by CMG to push a right-of-publicity bill through the New York State legislature, now that the California law was enacted. (One bill has already been introduced in New York, but failed to pass).

Nancy Wolff, an intellectual property attorney in New York, says the California legislature violated its own procedural rules in rushing the bill through the legislature. That could open the new law to challenge, she says.

But more significantly, the new law could create contract conflicts that open it to challenge on constitutional grounds.

“[SB 771] is retroactive. The problem is that people [who own images of celebrities] have entered into contracts, and exploited [the images] based on the law that was. Now that the law grants rights retroactively to some people, it takes away rights that other people had. That’s where the constitutionality comes in, and where this law will be tested, I’m sure.”

related links:
September 5: California Assembly Passes Bill to Benefit Marilyn Monroe's Estate

July 18: Another Postmortem Publicity Bill Surfaces In California

June 28: NY State Post-Mortem Publicity Bill On Hold

May 17: Another Court Says Heirs Don't Have Publicity Rights To Marilyn Photos

May 9: Court Rejects Right of Publicity Claim of Marilyn Monroe Heirs

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