Difference between revisions of "Right of publicity"
Jump to navigation
Jump to search
(work-in-progress) |
|||
| Line 1: | Line 1: | ||
| − | A '''right of publicity''' | + | A '''right of publicity''' depends on state law. For a deceased celebrity, the law of the state where the person died is controlling: |
| + | {{cquote|[C]laims under [California] section 3344.1 are only available if the decedent was domiciled at the time of death in a place that recognizes a post-mortem right of publicity. ''See, e.g.'', ''Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC'', 692 F.3d 983, 1000 (9th Cir. 2012) ("Because Monroe died domiciled in New York, New York law applies to the question of whether Monroe LLC has the right to enforce Monroe's posthumous right of publicity."). See also 1 J. Thomas McCarthy, ''Rights of Publicity & Privacy'', § 6:39 (2d ed. 2017) ("Unless a person dies a domiciliary of California, the California post-mortem right of publicity does not create a property right as part of the estate."); 1 J. Thomas McCarthy, ''Rights of Publicity & Privacy'', § 11:15 ("Almost all courts follow the rule that the existence or non-existence of a post-mortem right of publicity is determined by the law of the state of domicile at the time of death.").}} | ||
| + | ''Bravado Int'l Grp. v. Gearlaunch, Inc.'', No. CV 16-8657-MWF(CWx), 2018 U.S. Dist. LEXIS 226642, at *24-25 (C.D. Cal. Feb. 9, 2018). | ||
==Compared with False Endorsement== | ==Compared with False Endorsement== | ||
Revision as of 04:52, January 22, 2023
A right of publicity depends on state law. For a deceased celebrity, the law of the state where the person died is controlling:
| “ | [C]laims under [California] section 3344.1 are only available if the decedent was domiciled at the time of death in a place that recognizes a post-mortem right of publicity. See, e.g., Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 1000 (9th Cir. 2012) ("Because Monroe died domiciled in New York, New York law applies to the question of whether Monroe LLC has the right to enforce Monroe's posthumous right of publicity."). See also 1 J. Thomas McCarthy, Rights of Publicity & Privacy, § 6:39 (2d ed. 2017) ("Unless a person dies a domiciliary of California, the California post-mortem right of publicity does not create a property right as part of the estate."); 1 J. Thomas McCarthy, Rights of Publicity & Privacy, § 11:15 ("Almost all courts follow the rule that the existence or non-existence of a post-mortem right of publicity is determined by the law of the state of domicile at the time of death."). | ” |
Bravado Int'l Grp. v. Gearlaunch, Inc., No. CV 16-8657-MWF(CWx), 2018 U.S. Dist. LEXIS 226642, at *24-25 (C.D. Cal. Feb. 9, 2018).
Compared with False Endorsement
A claim for false endorsement can exist when there is no claim based on a right of publicity:
| “ | The Movants also implicitly suggest that false endorsement claims premised on a celebrity's persona are tantamount to non-cognizable right of publicity claims. (X1X Br. 6). However, this argument ignores existing case law recognizing that Section 43(a) of the Lanham Act provides celebrities with a mechanism for asserting false endorsement claims. See e.g., Bruce Lee Enters., LLC v. A.V.E.L.A., Inc. ("Bruce Lee I"), No. 10 Civ. 2333 (LTS), 2011 U.S. Dist. LEXIS 36406, 2011 WL 1327137, at *5 (S.D.N.Y. Mar. 31, 2011) (collecting cases); Fifty-Six Hope Rd. Music, Ltd., 778 F.3d at 1072-73 (recognizing that celebrity false endorsement claims are distinct from right of publicity claims). To be sure, these cases are not precedential; however, the Court believes their reasoning to be persuasive and will adopt it here. | ” |
A.V.E.L.A., Inc. v. Estate of Marilyn Monroe, 131 F. Supp. 3d 196, 205 (S.D.N.Y. 2015).