Right of Publicity

Screen Actors Guild sponsored SB 771 because it clarifies that the property right to use a deceased personality’s name, voice, signature, photograph or likeness in a commercial product is freely descendible by means of trust or any other testamentary instrument executed before or after January 1, 1985. This bill makes clear that regardless of when an individual dies, his or her heirs and beneficiaries may, for 70 years from the date of death, control the use of his or her image for commercial purposes. SB 771 explicitly states that the rights recognized for deceased personalities are made retroactive, including to those deceased personalities who died before January 1, 1985.

SB 771 also clarifies that unless the testamentary instrument contains an express disposition of publicity rights, those rights will be transferred to the residuary beneficiaries.

In 1985 The Astaire Law was enacted in California protecting the publicity rights for deceased celebrities. This law held that the posthumous rights of publicity (name, voice, signature, likeness) became transferable by will, contract or list of heirs. SB 771 (Kuehl D-Santa Monica) seeks to extend these protections to celebrities that died before January 1, 1985.

This past May, two federal courts—one in California and one in New York—held the law does not permit publicity rights to pass to the beneficiaries under a deceased celebrity’s will if that celebrity died before January 1, 1985—the effective date of the statute. Only the statutorily listed heirs have those rights. A federal court in New York recently ruled that the Marilyn Monroe estate had no rights of publicity because she died before the statute was passed into law.

As the law is interpreted now, only individuals who died after January 1, 1985 are protected, leaving those who passed away prior to that date completely open to exploitation. The right of publicity affords the performer the right to decide who controls his or her name and image after his or her passing.
These lawsuits also resulted in the introduction of legislation in both New York and California intended to clarify the original intent of the 1985 statute. The legislation in New York stalled due to technical concerns regarding an unintended impact on New York Estates and Trust laws. It will likely be reintroduced next year. The California legislation, SB 771, has passed both houses of the legislature and is awaiting the Governor’s signature.