Reynolds v. Reynolds
235 Ariz. 80
| Ariz. Ct. App. | 2014Background
- Robin published two online commentaries about Lois Reynolds during Lois's lifetime; Sylvia, as personal representative, claimed a right of publicity in the estate's inventory.
- The superior court ruled the estate had no right of publicity against Robin.
- The estate appealed, arguing the right of publicity exists in Arizona and may survive death; the estate sought to enforce the decedent's posthumous publicity rights.
- Arizona recognizes a right of publicity protecting name/likeness and treats it as a descendible property right.
- Commentaries at issue were expressive works (not ads) and not used for trade, thus not actionable under the right of publicity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Arizona recognize a right of publicity? | Reynolds asserts a protected publicity right. | Reynolds argues legacy claims are invalid. | Yes, Arizona recognizes a right of publicity. |
| Does the right of publicity survive death? | Estate contends rights survive as a descendible property right. | Robin contends rights do not survive postmortem. | Right of publicity is descendible and survives death. |
| Is the right descendible even if not exploited during life? | Descendibility should not depend on lifetime exploitation. | Descendibility should be conditioned on exploitation. | Descendible irrespective of lifetime exploitation. |
| Do Robin's commentaries violate the decedent's right of publicity? | Commentaries exploit Lois’s identity for trade. | Commentaries are expressive works not used for trade. | No violation; commentaries are protected expressive works. |
| Do Restatement Third § 47 exemptions apply? | Commentaries fall outside mere news/entertainment. | Exposition is within protected expressive use. | Expressive works not used for trade are exempt. |
Key Cases Cited
- Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994) (not actionable for fictionalized biography use of image)
- Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983) (right of publicity protects commercial value of identity; acts as property right)
- Toffoloni v. LFP Publ’g Group, LLC, 572 F.3d 1201 (11th Cir. 2009) (economic focus; postmortem rights not conditioned on lifetime exploitation)
- Elvis Presley Int’l Mem'l Found. v. Crowell, 733 S.W.2d 89 (Tenn. App. 1987) (postmortem publicity rights recognized in various jurisdictions)