*1 Dec. No. 30824. 1979.] [L.A. al., and Appellants, et Plaintiffs
BELA GEORGE LUGOSI PICTURES, Appellant. Defendant and UNIVERSAL *3 Counsel
Irwin O. for Plaintiffs and Spiegel Appellants. Amici Curiae on be- & M. Grossman as Harvey
Grossman Shames and half of Plaintiffs and Appellants.
Robert L. Wilson for Defendant and Appellant.
Rosenfield, Susman, & Meyer H. Mitchell Gould and L. Jeffrey Nagin Curiae Amici on behalf of Defendant and Appellant. Opinion
THE COURT. in this case in We grantedhearing order to consider the important issues issues, raised. After an independent these study we have concluded that thoughtful opinion Justice Presiding Roth District, for the Court of Appeal, Second Appellate this case issues, treats correctly it as our That accordingly adopt own. *4 with opinion, additions,* appropriate deletions and is as follows: 1930, In September Bela and Lugosi Universal Pictures Company, (Universal)1 Inc. concluded an film for the agreement of the production in Dracula which Lugosi contracted to and did the title play role. Para- graph of the agreement contained a grant set forth in the rights footnote.2 Hope and Bela Linninger Lugosi George Lugosi, widow
[Plaintiffs] son, and surviving of Bela filed a respectively, Lugosi, complaint against 3, 1966, Universal on February were the alleging they heirs of Bela * together, Brackets [], in this manner are used to indicate opinion deletions from the of the Court of Appeal; enclosing (other brackets material parallel than the editor’s ci- are, tations) indicated, unless otherwise used to by denote insertions or additions this (Doers court. Bridge v. Golden Gate etc. Dist. 23 Cal.3d 183 [151 Cal.Rptr. 1261].) 588 P.2d Pictures, Studios, 1Appellant Inc., City Universal a Division of Universal is the survi vor of Company, Universal Pictures Appellant predecessor and its corporation are referred collectively to herein as Universal. producer 2“The photograph shall have the to produce, repro otherwise and/or duce, transmit, exhibit, distribute, exploit and in connection with the said photoplay acts, any and all poses, plays of the artist’s appearances any and and all kinds here under, record, transmit, exhibit, and shall have the right reproduce, to further distribute, voice, exploit and photoplay in connection with said the artist’s and all in strumental, musical, produced and other sound by effects the artist in connection with acts, poses, plays such and appearances. producer shall likewise have the likeness, give otherwise, use and publicity to the artist’s and photographic name and instrumental, musical, reproductions to recordations and and other tising of the artist’s voice and all hereunder, produced by sound effects the artist in connection with the adver exploitation photoplay.” (Italics added.) and of said had, Lugosi who died in and that (Lugosi) Universal commencing appropriated which appropriate continued they inherited had from and which was not embraced in Lugosi paragraph agreement Universal. assert that from 1960 until [Plaintiffs] time, the present Universal into many entered licensing agreements authorized licensees to use the Count Dracula character. The licensing agreements by executed list the movie particular date of the movie which Lugosi appeared.
The issue as framed the trial judge is: seek to recover “[Plaintiffs] the profits made in its of the use of the Count licensing [Universal] Dracula character commercial firms and enjoin [Universal] making any action, additional without grants, consent. .. .The [their] therefore, raises the question of whether Bela had granted in his contracts with merchandising rights [Universal] [Universal] Dracula, his movie of Count portrayal the nature of such rights, whether such if rights, retained by Lugosi, Bela descended to the ..” [plaintiffs]..
The trial court found in pertinent part that “the essence thing licensed” by Universal to each itsof licensees was the individ- “uniquely ual and appearance *5 Bela in likeness the role Lugosi of Count Dracula.” The finding was based upon uncontradicted evidence that it was Lugosi’s likeness that was used in the Dra- merchandising Count cula notwithstanding Lee, the fact that other actors Lon (Christopher and Chaney Carradine) John in appeared the Dracula role in other Universal films.
The trial court concluded his Lugosi that: lifetime had a during pro- tectable or property his facial characteristics and proprietary the individual Dracula; manner his likeness and as Count appearance said that or property was of and proprietary right such character sub- stance that it did not with terminate death but descended to heirs; his and that all title and [they] acquired right, interest in and to said under the will Lugosi. recovered a for damages and an judgment injunction.
[Plaintiffs] Universal appeals.3 [plaintiffs’] 3The trial court held arising also claim from the sales of merchan
dising rights licensing agreements under by prior February entered into 1964, were barred the judg statute of the cross-appeal limitations. from [Plaintiffs] prior ment to the extent it omitted arising an award claims to 1964. Bram Stoker’s 1897 novel Dracula has been in the do- always public Dracula, however, main in the United States.4 Universal’s film was after the studio had copyrighted purchased picture motion rights Stoker, heir, from Florence Stoker’s Hamilton Deane and Balderston, John authors of Dracula. stage play (Lugosi had Count Dracula in the played 1927 Deane-Balderston Broadway found, The trial court play.) notwithstanding Universal’s copyright in. film, that the character of Count Dracula as described in Stoker’s novel is public domain in United States. law,
Before it be discussing applicable should noted: record, There is no in the no in the allegation complaint, evidence the court in his lifetime or no alone with oth- finding Lugosi ers used name likeness as Dracula or otherwise connection and/or business, with service so as to any product secondary or impress business, meaning on such or service. product However, could have during through created his lifetime name, exploitation the commercial of his face likeness in con and/or operation nection kind of business the sale any or kind product or service a will for such general acceptance good business, product or service the effect of which among public, would business, have been to such impress product service with a secondary (Johnston law meaning, protectable under the of unfair competition. Film 20th Century-Fox Corp. Cal.App.2d name, 474].) P.2d of one’s face likeness with tie-up a busi and/or ness, or service creates and saleable in much product tangible product one same created who under way property may organizes *6 his a to build according name business sell houses to a fixed and/or book, or who a or plan paints picture writes creates invention.5 found, trial court and the have briefed and ar- parties extensively that the in is as that is gued, interest one of term question “property” comply deposit requirements 4Stoker failed to with the United States in in effect England adhering 1897. other countries In Berne Convention the novel passed public April domain in 1962. into the Johnston, page given says the court 810: “An idea embodiment tan 5In in right.” gible subject property is the of common law form Thus, tie-ups, crystallized the idea commercial if it had been into a to sell business by Lugosi during would have resulted in as that term is in his lifetime defined Johnston, (See 808.) supra, p. in Civil section 654. discussion Code however, in defined Civil Code section agree, 654. We Dean (Prosser, Prosser who considers a over this dispute question “pointless.” law, 383, 406.) 48 Cal.L.Rev. Privacy by “Once protected of a use of name to the his right person right [the likeness]... (Italics of value upon which can plaintiff selling licenses.” capitalize by added; Prosser, (4th 1971) Law Torts ed. brief, in his lifetime had a his Lugosi to create in name right value,” likeness “.. .a could have been trans- and/or could,
muted into of value if things Lugosi or he elected not to exercise such protect it from right, invasion others a suit for by injunction by However, shows, insofar as damages. the record had no Lugosi and/or occasion in his lifetime to sue or restrain because of a anyone purported of his invasion exploit his name and commercially likeness.
Such business, “.. . of value” to create a product or ser vice of value is embraced in the law of privacy protectable during one’s lifetime but it does not survive the death of Lugosi. “The law of comprises four distinct kinds of invasion of four different privacy interests of the plaintiff, which are tied together name, the common by but otherwise have almost in common nothing except that each repre sents an interference with the in plaintiff, the phrase coined ‘to Judge be let alone.’ Cooley, Without any attempt to exact defini tion, these four torts may be described as follows: 1. Intrusion upon [¶] the plaintiff’s seclusion or solitude or into his private affairs. 2. Pub [¶] lic disclosure of embarrassing private facts about the plaintiff. 3. [¶] Publicity which places the plaintiff a false in the light public eye. [¶] 4. Appropriation, advantage, plaintiffs name for defendant’s (Italics added, Prosser, likeness.” Privacy, Cal.L.Rev. 389.)6 lifetime,
Assuming arguendo Lugosi, in his based upon publicity he received because of nature his talent exploiting and/or character, name and likeness with the association Dracula had estab- lished a business under the name of Horror Pictures and sold 6Item of Dean Prosser’s privacy complement classification of invasions of has been legislatively ed Code adopted provides Civil section in 1971. section [That *7 recovery damages the for the use persons’s unauthorized commercial of another “name, likeness,” photograph, specified suggests or under conditions. One commentator i.e., may right personal section 3344 confer a one’s property identity, “right publicity.” (Note (1972) 669.) Significantly, 3 Pacific L.J. section 3344 does not purport right to create a person descendible enforceable of the whose heirs iden tity appropriated.] was shirts, in so do- as imprinted
licenses to Dracula”7 “Lugosi have business, will for such good built a public acceptance ing large and/or have created service, is would Lugosi or there little doubt product the rights or wholly apart his lifetime a business during property his and likeness name granted exploit he had in the picture Count Dracula of the lead role of characterization Dracula.
However, whether heirs assumption, even on above it on how was depends entirely would have to such property succeeded died. have sold the managed may before Lugosi died, it before or sold for installment spent pay- consideration he death, event such ments due after his which latter royalties and/or course, would, be a of his estate. payments royalties part and/or “There rules that have consistency has. . .been a deal of in the good been under the common name. As to disparate to the four torts applied one, four, is a plaintiff’s personal it is that the agreed unless, does his as is family, obviously not extend to members of with his. The not possible, along their own invaded privacy survive and while the cause of action after assignable, may may state, death, of the there is particular his survival rules according one who is concerning no common action publication law for added, Torts, (Italics omitted, Prosser, Law of su- already dead.” fns. 814-815.) pp. pra, hereafter, one’s name or we discuss
[Although,
exploit
the itali-
support
likeness
a number
decisions
may
assignable,] []
cized conclusion.
Productions,
(7th
1965) 345 F.2d
Desilu
Cir.
Maritote v.
(cert.
A.L.R.3d
den.
176], Capone brought administratrix estate arising alleged appropri- enrichment out of defendant’s unjust name, The widow ation of the likeness and A1 personality Capone. their and son of A1 an action for invasion of Capone brought privacy, proper- based on the that the appropriation. plaintiffs argued same name, his did not fall personality, of A1 likeness ty rights Capone, death, but his heirs. Defen- public upon passed into the domain illustration, [plaintiffs’] that Universal position we assume purpose 7For conflicting rights. question. we do not decide this As stated have would had no infra
821 that the for enrichment was in essence an argued unjust dants action action for the invasion of the A1 right privacy Capone, defendants, survive his with the hold- agreed could not death. court that the relief was that of a ing sought by plaintiffs essentially was claimed invasion of a entered for right privacy, judgment position, upon the defendants. In of its the court relied Dean support in 48 Prosser’s cited article Cal.L.Rev. 383. Privacy 1954) In Schumann v. Loew’s Ct. 135 N.Y.S.2d Incorporated (Sup.
361, some of the Schumann great-grandchildren composer Robert suit brought against the defendant misappropriation once famous composer the latter’s name. belonging Plaintiffs in a man’s name attempted analogize property right In right found real citation of cases. re- property through denying covery plaintiffs, the court stated: “None of them cited [cases plaintiffs] contention that a supports plaintiff’s motion picture depicting the life of one who died is almost one hundred earlier years infringe- ment upon deceased’s in his name which descended property right (Schumann to his heirs or next kin.” v. Loew’s Incorporated, supra, 369.) at p. Gems, (1959) James v. Screen Inc. 174 650 Cal.App.2d P.2d [344 Jr.,
799], James, the widow of Jesse suit brought against a film produc- er a television show the life of her husband. portraying Both first and second causes of action that there had been alleged “exploitation of plaintiff’s deceased husband’s name for personality and commercial (174 purposes.” p. The court treated both Cal.App.2d causes of action as personal the deceased so that even if there was an invasion of the right it was not a that survived privacy death.
When the right invaded was more strictly “to let privilege alone,” the courts in this state have refused to extend to heirs of the (potential) plaintiff the to recover for the invasion of that right: “It one; well settled that the personal privacy purely it cannot be asserted by other anyone person than the whose has privacy invaded, is, been must plaintiff plead prove his privacy (Coverstone (1952) 315, has been invaded. v. Davies 38 Cal.2d 322-324 876]; (1961) P.2d Werner v. Times-Mirror Co. 193 Cal.App.2d [239 111, Gems, 116 Cal.Rptr. (1959) James v. Screen 174 208]; [14 Cal.App.2d v. Johnson 799]; Kelly P.2d Co. Publishing [344 160 Cal.App.2d 659]; P.2d Metter v. Los Angeles [325 Witkin, Examiner P.2d 491]; Cal.App.2d (8th ed.) Torts, 2605.) Further, Summary Cal. Law § *9 (Hendrickson the Cali- dies with person.” does not survive but Cal.Rptr. Cal.App.3d Newspapers, fornia 429].) name exploit is reason for the rule. The decision to good very There unlikely one. It is not at all that and likeness a personal lifetimes exercise during respective in his did not their position others their and transfer upon personalities, their undoubted to capitalize venture, commercial or for reasons taste the value into some thereof be de- to too organized or the be enterprise might because judgment be bothered. did not want to or because manding simply they immediate an- It that because one’s urge seems us rather novel to other evidence of the flood of publicity cestor did exploit and/or for commercial purposes, he received in his lifetime acceptance public descends to heirs. done so is the to have opportunity dead, Bela Lugosi Yet claim boils down to this: now that [plaintiffs’] their opportunity exploit the who should have the they are ones only personality. ancestor’s in one’s a name or likeness exploit
If a opportunities person if first be that it assumed may lifetime are inheritable property, ancestor, similar thereof, exploit op- do not their immediate heirs like succeeding so is transferred automatically do portunities historic obtain public figures remote descendants heirs? [May the name or likeness use of for the unauthorized commercial damages drawn, not, be the line to If where is of their ancestors? distinguished limitation some durational Assuming should draw it? that and who a that the such adoption has been suggested would be it appropriate, authority,” scope judicial would be “beyond limitation (1978) 29 L.J. (Note Hastings will ...” required. action “legislative Productions, Inc., F.2d 774; Desilu see Maritote v. to Civil amendment by appropriate Certainly Legislature (see a of action ante), recognize might fn. Code section 3344 For Lugosi. such as or heirs of persons immediate family behalf of however, above, adopt we decline to judicially the reasons stated such rule.
Thus, death related anyone, present law,] upon under enterprise, energy imagination, with the Lugosi, or unrelated to name, or could, in own name or in a fictitious cash or and the her] [his name so se- have Lugosi, impressed name coupled trade secondary profit lected with and realized a loss so meaning *10 idea, of its the doing upon acceptance public the value the depending by and the After enterprise the undertaken. management death, his was in the domain. [plain- name public Anyone, including them, Universal, or or it a tiffs], either could use for legitimate commercial purpose. however,
We or person are not to that prepared say, [plaintiffs] any other have to a with attempted than could build business which business the name secondary meaning, exploited Lugosi, coupled Lugosi’s name with that of Dracula. That is question not before us.
The learned trial holding in the name and likeness are judge, heirs, which can the “property” to relied on line cases which pass purport to as to recognize such the “property right” opposed right in privacy founded tort v. (e.g., Haelan Laboratories Topps Chewing (2d 1953) 866; (D.Minn. Gum Cir. 202 F.2d Uhlaender v. Henricksen 1970) 1277; (8th 316 F.Supp. v. Cepeda Company Cir. Swift 1969) 1205.) 415 F.2d
The question which these cases is this: if the pose right exploit name and likeness can be because it is a assigned “property” right (Haelan), is there the reason same cannot why right pass heirs?
Assignment exploit name and right by likeness “owner” thereof is with its synonymous exercise. all the above and, cases the owner of it right too, did in his lifetime assign did in precisely this his lifetime when he assigned his name and likeness to Universal in connection with the exploitation picture Dracula.
(Ante, by fn. Assertion the heirs their right exploit prede cessor’s name and likeness to commercial situations he left unexploited is not the exercise simply right entitled to it.8 person Thus, whether in or not the sounds tort or and we think property, Studios, 8We analyzed have (S.D.N.Y. 1975) Price Hal Roach Inc. 400 F.Supp. part which relies opinion. on the logical trial court’s found “no reason [Roach [] terminate this publicity] upon person protected.” (P. 844.) death of the To [of contrary, explained, nondescendibility justified we have a rule of per sonal right, nature of the coupled difficulty judicially selecting with the appropriate (See durational it limitation were held descendible to one’s also heirs. Fac Etc., Arts, Etc., 215, 220-222; tors (2d 1978) Inc. v. Pro Cir. F.2d Factors Inc. v. (S.D.N.Y. 1977) 282-285.)] Creative Card Co. what is debate over this issue is pointless,
with Dean Prosser that a or personal. stake whether this to be question ought is the essence that reac publicity means The so-called likeness, or which be fortuitous may tion to name and public endows the name and likeness planned, may managed opportunities. person commercially exploitable involved or exploita and likeness from unwarranted intrusion of name protection law of privacy. tion is the heart of the *11 never
If artistic or intellectual exploitation the rights their their creators were to survive exercised the lifetime of during of ideas nor death, interest in the free dissemination society’s neither be served. Author- to the fruits of his own labor would rights artist’s noted, which underline considerations ity, supports strong policy the conclusion that the right personal. name likeness is exploit personal
We that the and hold all, exercised, if him his lifetime. by during and must be artist Court Appeal opinion.] [End to enter a the trial court is directed
The is reversed and judgment for its costs. Plaintiffs’ cross-appeal new in favor of Universal judgment its of appeal. shall recover costs is dismissed as moot. Universal I concur in MOSK, colleagues judg- With the majority my J. ment, this is a Roth. Because Presiding in the Justice opinion and court, to add some in I am impelled matter of first our impression observations. not unlike Factually: this is remarkable case. and a
Factually legally fame, Bela rises from the him brought films that horror former employer. Legally: death to haunt his after grave years law of action hereto- a common cause is a adaptation vehicle strained in California. or case law fore unknown either in a statute define the dissenting colleagues, erroneously and plaintiffs, my issue, their We are repeat misconception. consistently fundamental the commercial control Lugosi’s right the nature by troubled (Hae has been established. long likeness. That of his exploitation 1953) (2d 202 F.2d Gum Cir. v. Chewing len Laboratories Topps (8th 1969) 415 F.2d 868; Cir. and Company Cepeda Swift 1206; (D.Minn. 1970) Uhlaender v. Henricksen 316 1282.) The issue here successors to control the character—i.e., commercialization of a likeness of a dramatic Count Dracula—created a novelist Lu- by portrayed compensation by gosi film produced a version a motion by picture under company license from the successor novelist. The error in discerning problem the trial pervades court’s conclusion. one Inevitably who asks question gets the answer. wrong wrong
Bela Lugosi was a he actor, talented actor. But was an practitioner a arts; of the thespian he innovator, was not an playwright, creator or As an he entrepreneur. actor memorized lines and portrayed roles him, written for albeit with consummate skill. In this instance the part he was played Dracula, that of Count character out of legendary novel Stoker,1 originated Bram published first England for the screen adapted writers by Universal employed Pictures. *12 Due omission, to all copyright at times involved herein the novel and its characters had been the American domain. public
Merely a role under the playing foregoing circumstances creates no actor, inheritable in an absent property right a contract so providing.
Indeed, discloses, as the record other actors have many portrayed role, Carradine; same Lon notably Chaney John the first movie was a version released European in 1922 with Max Schreck as Count.
Thus neither Lugosi his lifetime nor his estate during thereafter owned the exclusive exploit Count more Dracula than Gregory Peck possesses or his heirs possess could common law exclusivity MacArthur, Patton, General C. Scott to George General James Whit- Truman, more to Will Rogers Harry or Charlton Heston Moses.
I do not suggest that an actor can
a
never retain
proprietary interest
in a characterization. An
creation of a fictional
original
figure played
(Goldstein
its
well
exclusively by
creator
may
protectible.
Califor-
nia
U.S.
L.Ed.2d
Unquestionably contract here giving There was an employment eliminated contract. acts, poses, and all of the artist’s exploit “any was intended to Whether the contractual plays appearances.” photoplay disput- exploitation presentation be limited in the that conflict and ambiguities ed To resolve parties. custom of either to expert testimony concerning contract we should turn law. Fortunately was admitted to the the industry—none here:—or has us Legislature given guidance. to the La- contrary,
In the of a contract precise provisions absence Code, 1985) must be read into section 2860 Civ. (formerly bor Code § *13 provides: “Everything The statute relationship. every employment the except compen- of his employment, an virtue acquires by employee to the belongs employer, to him from his employer, sation which is due or after the expira- or lawfully unlawfully, during whether acquired tion of the term of his employment.” In Zahler v. accepted.
The has been principle universally foregoing 582 Columbia Pictures Corp. Cal.App.2d Cal.Rptr. [4 when music sued for composer damages the heirs of a musical 612], as a motion picture background to a film studio written under contract television station. Said to and used aby was transferred subsequently as part creates something the 589: “where an page employee court is the of his the created thing his duties under his employment, (1968) 264 Garrett Corp. in Treu v. Similarly employer....” invention created an an Cal.Rptr. 284], Cal.App.2d [70 that was the very the because employer held to to belong was employee and paid.” reason he “was hired the was hired and
By parity Lugosi, employee, paid reasoning, Universal, the to a ver- circa create —handsomely, 1931—by employer, product sion Count in a of that picture. Dracula motion all and the residuals therefrom under the employment flowing belong, enactment, the the Had desired to legislative employer. employee effects the em- withhold employment exploitation by he could have so the There is no ployer, provided agreement. exclusion the instant contract. employment
To the same effect is Famous Players-Lasky Corp. Ewing Cal.App. P. There electrical device was conceived 65]. the motion the picture studio but and employer, originality unique skill in the actual was the inventing lights that of employee-electrician.
The court held that the manual despite and creative skill of dexterity the the employee, product belonged employer. Again the analogy clear the instant case: Universal as the use employer conceived as Dracula a motion picture acquired the thereto from rights author; successor of the was hired and did employee apply his creative skill to in Famous Players- in the film. As performing Lasky, product all therefrom rights flowing belong employer. I
Finally, must comment briefly problems my col- dissenting face leagues when to determine the they attempt limitations of temporal their version of the publicity. descendants of May George Washington sue the Secretary for Treasury placing likeness on the dollar bill? the descendants of May Abraham Lincoln obtain for the damages commercial of his exploitation name likeness by the Lincoln National Life Insurance or the Lincoln Company division of the Ford Motor Company? descendants of James and May Dolly Madison recover commercialization Madison Dolly confections? *14 decision,
Although it a conceding inherently policy and without dixit statutory guidance or the ipse authority, case dissent mere by se- i.e., lects the period, the author’s life copyright plus years.
I if suggest copyright statute can be to an artistic or adapted creation where there no actual recorded American literary copyright, then all rights exploitation to of Dracula would have been vested not in author, and his heirs in the Lugosi but Bram Stoker. Parenthically, abroad, Stoker retained a book did not protection his fall copyright in and in countries adhering into the domain public England course, was, This after long until of 1962. April Berne Convention itself Universal protected for Universal. While performances Lugosi’s successor, Stoker, Bram in 1930 with Florence Stoker’s by contracting version who theatrical adapted Broadway and with the playwrights Dracula, if Dracula in exploit had Lugosi attempted in the Stoker estate. damages he would have been liable in have had heirs no now than would greater Lugosi should have rights his lifetime. free
A is to dissemination salutary tendency today encourage (See, sources. artistic—even commercial ideas—political, literary, Sears, & Co. 376 U.S. Roebuck Co. e.g., Stiffel 661, 666-667, today, If Bela were alive 784].) Lugosi L.Ed.2d 84 S.Ct. invasion his for Uni- privacy he would be unable to claim an in but of created Lugosi qua Lugosi products versal’s not of exploitation Dracula, a On Lugosi played. privacy of Count role image re- the substantial would be denied theory his successors concededly after deserved two decades wards neither earned nor otherwise they cause of such bonanza on a created approve newly death. To Lugosi’s free action, California, ill serves the principles heretofore unknown and free expression enterprise. the judgment.
I Court of that we must reverse agree Appeal BIRD, dissent. I respectfully C. J. his name still years ago, died more than Lugosi Bela
Although Dracula, he on played stage Count role image evokes the vivid public’s memory, image So pictures. impressed motion Pic- marketed defendant Universal as Dracula was profitably in the tures, Count Dracula employed Lugosi portray had li- Pictures concluded Specifically, Universal motion Dracula. picture likeness in the use of Lugosi’s which authorized censing agreements of numerous in connection with sale of Count Dracula portrayal merchandising products. commercial will, ac- this
Plaintiffs, commenced beneficiaries under Bela Lugosi’s further licensing injunction against tion for and an damages infringed such use was unauthorized and likeness on ground likeness. use of Lugosi’s the commercial their interest in controlling *15 in of the nature California question thus the novel This case presents and of an interest in ex- scope individual’s commercial controlling ploitation of his or her likeness. I conclude Universal Picture’s was and on licensing Lugosi’s infringed unauthorized image Lugosi’s inheritable, interest in his likeness. Since interest is proprietary trial court held that entitled and in- correctly plaintiffs damages are junctive relief.
I. The Facts defendant, (Universal), Bela Lugosi (Lugosi) Universal Pictures entered a series into agreements relating Lugosi’s portrayal character Count Under Dracula.1 contract dated employment Sep- 11, 1930, tember agreed to in part of Count Dracula play Dracula,2 the motion released picture was in by Universal 1931.
In with connection the execution of another in contract employment 1936, Universal obtained February written in Lugosi’s permission use the motion a wax picture Dracula"s face Daughter image and head as Count Dracula. This bust was a representation of Lugosi’s in appearance In Dracula. Lugosi again agreed Count play Dracula in Universal motion Abbott and picture Costello Meet Frankenstein,3 four death, years after Lugosi’s Universal began to enter
into licensing agreements with various businesses use of the Count Dracula character with connection certain commercial mer- filed, chandising products. when By this action was Universal had concluded such approximately licensing agreements. The agreements authorized the use of the likeness of Count Dracula in connection with the sale of such products plastic toy pencil sharpeners, plastic model figures, shirts, T-shirts and sweat card games, soap and detergent pro- ducts, kites, picture puzzles, masks, candy dispensers, belts and belt buckles, and beverage stirring rods. agreements 1The Corporation, initial executed predeces were Universal Pictures
sor of Company, corporation Universal Picture Inc. latter was subsequently The Studios, Inc., merged Pictures, City into Universal and is now known as di Studios, vision City of Universal predecessor corporations Defendant its are wholly herein referred to as subsidiary corporation Universal. Universal is a owned MCA, Inc. simultaneously rights Dracula, 2Universal picture secured motion novel first published stage play stage play based thereon. was per first formed in Lugosi portraying Bela Count Dracula. An earlier motion picture depicting produced the character Dracula had Count been in 1922. actors, Jr., including Chaney, 3Numerous other Lon Christopher Lee and John Car
radine, part played have of Count Dracula motion pictures stage. Some those pictures produced motion were distributed Universal. and/or *16 the use of authorized specifically The licenses Universal granted by in Dracula and Count Dracula likeness from his portrayal Lugosi’s actor’s No made reference other Daughter. agreement Dracula’s these also grant- all of Nearly agreements of Count Dracula. portrayal horror film characters.4 The ed in other rights merchandising to license the com- had the agreements provided Universal characteristics, all names, and these images use of the mercial However, the name of using was precluded characters. licensee in its commercial activities. who each character played actor Plaintiffs, widow, son and of the commer- learned Lugosi’s surviving in his in April cial use of likeness Count Dracula portrayal Lugosi’s suit in and They seeking damages injunctive 1963. filed August in- his likeness was unauthorized and ground licensing relief on thaf value the commercial right, Lugosi’s valuable fringed property moved dismiss the on the complaint ground likeness. Universal Plaintiffs were plaintiff. subsequently estate was Lugosi’s proper without so that estate granted voluntary prejudice dismissal not consid- reopened could be to determine distribution of had plaintiffs ered in the earlier decree of distribution. after estate, to the the present been awarded all causes of action belonging was action filed.
The trial concluded that the essence of Lugosi’s portrayal court his in the Count was found in “facial characteristics Dracula of his likeness and The court appearance.” individual manner uniquely licensees the further found that Universal had its granted use likeness Dracula consistent with generally of a Count character Rather, li- had the character in the novel Dracula. described appearance” censed individual likeness “uniquely of Count Dracula. portrayal to license The trial held that Universal had no contractual court interpret- such use. A in the contract was grant-of-rights provision Lugosi’s portrayal ed record photograph to authorize Universal Dracula, resulting picture, to distribute the motion of Count Dracula in likeness, in con- name, acts and appearances publicize Lugosi’s and to (See fn. picture. post, the motion advertising nection found to However, were licensing agreements Universal’s commercial Monster, Man, Wolf included the Frankenstein other characters 4The licensed Opera, Lagoon, Mr. Black Phantom Mummy, from the the Creature Man, Mutant, of Notre Dame. Hyde, and the Hunchback the Mole *17 have been from concern- completely separate apart any advertising the re-release of to movie theaters ór its broadcast on ing Dracula Further, television. the trial court concluded that did not other- Lugosi wise to Universal his of Count grant exploit portrayal Dracula in connection with the sale of commercial products.5 was found to have
Lugosi protectible proprietary interest in the commercial use of his likeness and of the appearance, independent pro- tection afforded the common privacy. protection law This to Lugosi’s extended likeness in his distinctive of Count portrayal Dra- cula. This did not terminate death but proprietary right upon Lugosi’s beneficiaries, descended to his neither plaintiffs. Lugosi Since nor plain- tiffs had authorized Universal license the use of likeness in Lugosi’s Dracula, of Count portrayal such use constituted a tortious interfer- interests, ence with plaintiffs’ to recover entitling plaintiffs damages.
The trial court found that the applicable statute limitations for the appropriation protectable (Code interest was two proprietary years Proc., 1), Civ. license, subd. and that each and each renewal or § thereof, Therefore, extension constituted a separate plaintiffs tort. were entitled to for damages each license or agreement renewal thereof ex- ecuted or commenced within two years filing this action on February action, 1966.6 The initiation of the present rather than the filing of plaintiffs’ suit in was found to be the critical August date for measuring recovery since the was not period present action con- sidered a continuation of the 1963 lawsuit.
In connection with the approximately licensing agreements which limitations, was not recovery barred the statute of $260,000 received more than in royalties. After considering detailed evidence on the proportion of that amount which resulted from licensing the use of Lugosi’s likeness as to other compared characters and on the extent of Universal’s expenses, the trial court awarded plaintiffs $53,023.23 in damages. Plaintiffs were also awarded inter- prejudgment 1, 1969, est on this amount from January “mid-point defendant’s Universal, 5The trial Lugosi court also found that the 1936 contract between purported which compromise to constitute a full settlement and of all claims de might Universal, mands which had against or have the future based on their contracts, prior did preclude appropriation image action for tortious of his arising years many agreement. after that 6Thus, damages the trial court plaintiffs any found that were not entitled to based on 3, 1964, royalty received February royalty after if that was derived from contracts extensions executed that date. before (See Code,
infringement.” Civ. The court further permanently § Universal and its enjoined affiliated related corporations and/or or entering into contract making or license agreement grants, authorizes, name, permits or licenses the use of likeness or ap- in his pearance of Count with the portrayal Dracula connection sale *18 or advertisement any of commercial in- merchandising product. The junction does not apply to either the exhibition pictures of motion produced in by Universal which as or Lugosi appeared Count Dracula dissemination or broadcast of any information about biographical Lugosi.7 a at- this multifaceted presenting
Universal from appeals judgment, asserting that cross-appeal, the trial Plaintiffs findings. tack on court’s continuation of the lawsuit should be considered a present action of the effect of statute calculating for of filed in 1963 purposes limitations. Right Publicity
II. The of right nature of Lugosi’s The issue in this case is the fundamental The trial court of his likeness. exploitation control the commercial interfer- constituted a tortious licensing agreements found Universal’s interest in the commercial or proprietary ence with Lugosi’s Ordered, Adjudged “It further injunction provides: trial court 7The entered Pictures, City Stu a division Universal that said defendant Universal and Decreed dios, Inc., corporations affiliated related and all of said defendants each and and/or Inc., Inc., Entertainment, Enterprises, corpora corporation, MCA including MCA MCA, Inc., Studios, tion, City Corporation, corporation, The Danelectro MCA, officers, directors, Inc., Inc., employees subsidiary corporations of and other corpora related of its said affiliated agents of defendant and each and said and/or licensees, successors, them, assigns and shall respective each of and their tions and any making entering enjoined or into hereby and restrained permanently and are grants, au agreement any or however denominated kind nature and license or name, thorizes, appearance or of Bela likeness permits, to or licenses the consents manufacture, deceased, distribu or in connection with the Lugosi, as Count Dracula on tion, sale, merchandising products any exploitation of commercial advertising or with, through any person, whatever; firm, tion, sale, participating other engaging or or and from in manufacture, venture, corporation distribu joint or partnership, association name, Lugosi’s likeness or advertising exploitation said of Bela or other merchandising products whatever. any with commercial appearance or connection on distribution, exhibition apply or extend to foregoing injunction does Dracula, Daughter, Abbott and Dracula’s broadcasting pictures entitled of the motion advertising in connection or television and theatres Meet Frankenstein in Costello factually biographi same, any true injunction apply or extend said with the nor does decedent, including opinions Lugosi, comments Bela about said cal information visual, audial, or audio-visu and communicated published, disseminated thereon expression.” al medium likeness, use which had Uni- plaintiffs. an interest descended rubric only versal asserts that interest is under the protected personal Since that ceased privacy. Lugo- death, si’s recover based on Universal’s cannot plaintiffs damages conduct.8 the critical is whether an individual’s in- Acordingly, question protected solely terest in the commercial use his likeness is or aspect pro- whether additional or alternative privacy tection exists. Privacy
A. Publicity The common law privacy creates a cause of action “an in *19 (Prosser, terference with the plaintiff.. of the be let right .‘to alone.’” (1960) 383, 389.)9 48 Privacy Cal.L.Rev. “The of gist cause ac tion privacy case is... a direct of a wrong personal character resulting in to the injury feelings.. .of individual... .The injury mental It subjective. impairs mental of peace comfort person and cause much more may suffering acute than that caused aby bodily injury.” (Fairfield v. American Photocopy Co. Equipment (1955) 82, 138 86-87 Cal.App.2d P.2d See Gill v. Curtis [291 194]. (1952) Publishing 273, Co. 38 Cal.2d 276-278 P.2d 630]; Hof [239 & Horowitz, stadter 1.1; The (1964) of Right Warren & Privacy § Brandeis, Right (1890) The to 4 193.) Privacy Harv.L.Rev. Since the right of privacy to developed protect an individual from certain injuries to his feelings mind, and assaults on his of peace he need not suffer any to his injury property, business economic interests as prerequisite to initiating suit for an invasion of privacy. (Fairfield v. American Pho Co., tocopy 86.) 138 Equipment Cal.App.2d p. 8It disputed right, is not privacy personal assign of is a which is not
able (See, e.g., and ceases with an individual’s death. v. State Cain Farm Mut. Auto. 310, (1976) Ins. 860]; Co. Cal.App.3d Cal.Rptr. 62 313 v. Hendrickson [132 Califor 59, (1975) nia Newspapers, Inc. Cal.App.3d 429]; 48 62 Cal.Rptr. Werner v. [121 111, Co.(1961) Cal.App.2d 208]; Kelly Times-Mirror 193 116 Cal.Rptr. v. John [14 son Publishing (1958) Cal.App.2d 659], Co. 160 721 P.2d generally See [325 Torts, 6521; Prosser, Annot., (4th Rest.2d 1971) seq.; Right Torts ed. 802 et § § Thus, Privacy (1950) therein.) 14 Lugo A.L.R.2d 750 and cases cited if the use si’s products only Lugosi’s right likeness in the sale of privacy, commercial violated Lugosi’s such use after plaintiffs any death would not entitle relief. long 9A common law privacy recognized by has been the courts of this state. Association, (See, e.g., (1971) v. 4 Digest Briscoe Reader’s Cal.3d 529 [93 Cal.Rptr. 1]; P.2d (1952) 57 A.L.R.3d 38 Coverstone Davies Cal.2d ; 876]; (1931) 315 tion, P.2d 91].) Melvin v. Reid Cal.App. P. In addi [239 people recently adopted of California have a constitutional to privacy. (Cal. Const., I, art. § for another’s commer- an individual’s likeness appropriation than those different distinctly often intrudes on interests advantage cial in this have not object- Plaintiffs case privacy. protected by likeness nor claimed Lugosi’s in which Universal used ed the manner Rather, have asserted from such use. plaintiffs mental distress enterprise from an economic windfall reaped are entitled. they rightfully or advertise promote it is for individuals commonplace Today, case, even have or, as in the present commercial services and products Individuals athlet- prominent their infused in products. identities arts, ics, business, frequently are example, entertainment and the determines When a product’s promoter involved in such enterprises. will advantageous, of a person that the commercial use particular As a re- for the privilege. is often promoter willing pay handsomely sult, persona promotion the sale of one’s connection (See business. big has become products unquestionably commercial Note, Publicity the Right Pictures: Descent v. Universal 751; Nimmer, Publicity The Right L.J. Hastings 215-216; Treece, Ex- 203, 204, Commercial 19 Law & Prob. Contemp. *20 Likenesses, Names, (1973) 51 Personal Histories ploitation of 637, 646.) Texas L.Rev. in- is intended to individual’s identity
Such use of an commercial celebrity’s identity by fusing of the product crease the value or sales or of the value publicity some siphoning product thereby pre- This use is product. into the in celebrity’s persona will good person’s with that mised, and association on part, public recognition The commer- likeness, such recognition. to create ability name or an depends thus identity primarily person’s cial value of a particular he or she for which characteristics and the person’s visibility that public (D.Minn. 1970) F.Supp. 316 (Uhlaender. v. Hendricksen is known. 1277, 1283.) to develop are needed time and energy money,
Often considerable be required of labor may field. Years a particular one’s prominence devel- sufficiently skill, or virtues are notoriety before one’s reputation, some medium through return an economic oped permit Sys- Inc. v. Urban (See Rosemont Enterprises, promotion. commercial affd. as tems, 146], N.Y.S.2d (1973) Misc.2d 788 Inc. 72 [340 Nimmer, 19 Law 17]; N.Y.S.2d 42 544 App.Div.2d mod. [345 some, For the investment may eventually & Prob. at Contemp. value in identity. create considerable commercial one’s context, is the ability this the marketable that labor product and evoke a desired person’s name or likeness to attract the attention kind of in a audience. That is a response particular response consumer (See person. will or value Ali good recognition generated by 728-729; (S.D.N.Y. 1978) Grant v. Es Inc. Play girl, F.Supp. (S.D.N.Y. 876, 879.) 1973) 367 While this product Inc. quire, is it is not concededly intangible, illusory.
An unauthorized commercial of one’s converts appropriation identity potential economic value another’s identity to advantage. enriched, The user one reaping benefits in celebrity’s (See vestment in himself. Palmer v. Schonhorn Enterprises, Kalven, N.J.Super. 462]; A.2d in Tort Privacy Law —Were Warren and & Wrong? Brandeis Law Contemp. 326, 331.) Prob. The loss well exceed the may mere denial of compen sation for the use of the individual’s identity. unauthorized use the individual’s disrupts effort control his public image, and may substantially alter that may precluded The individual be image. Further,
future in that well promotions as as other fields. while judi cious involvement in commercial promotions have been may perceived career, an important ingredient in one’s exposure uncontrolled may result, be dysfunctional. As a of his initial development vocation (See —his Treece, profession—may arrested. 51 Texas 642-646.) L.Rev. at pp. if one’s Finally, exploited without identity permission to promote products similar to those which the individual endorsed, has already the unauthorized use resembles unfair competi *21 tion. While the product first used the celebrity paid value, privilege trading on his the second publicity product has se cured a costless endorsement. The in simultaneous the market presence of these competing cause latter to products may be mistaken for the (See former and will diminish probably the value of the endorsement. Etc., (S.D.N.Y. 1977) Factors Inc. v. Creative Card Co. 444 F.Supp. 279, 283.) of the harm from an
Accordingly, gravamen flowing unauthor- in ized commercial use of a individual’s likeness10 most cases prominent present 10The case indisputably involves the use commercial of the likeness aof prominent person. No opinion expressed rights recognized is on whether the ap herein Inc., ply other (Compare Playgirl, individuals. Ali supra, p. v. 447 729 Nimmer, supra, Treece, 19 Law & Contemp. p. Prob. at 217 and Texas L.Rev. at pp. 644-645.) fn. (See mental Mots- financial not potential gain, anguish.
is the loss of (9th 1974) F.2d Cir. R. Tobacco Co. chenbacher v. J. Reynolds 406; Comment, Prosser, Transfer, 821, 824; 48 Cal.L.Rev. at Progency Privacy’s Stepchild Dracula’s Right Publicity: 1103, 1104, 8.)11 objec- The fundamental fn. 22 UCLA L.Rev. offensive, that the individual is but is commercial use tion not Indeed, will person representation has not been compensated. interest project it in the user’s be since is likely flattering, most (See if minimal. usually is positive any, The harm image. feelings, Note, Media Broadcasting Company: Ap- v. Zacchini Scripps-Howard (1977) Utah Regulation Amendment and State the First propriation, 817, 818-819.) L.Rev.
The individual’s interest thus threatened
most unauthorized com-
is
mercial uses
different
than the
interests
personal
significantly
has
protected under the
this difference
privacy. Recognition
for this
interest.
prompted independent
protection
economic
judicial
of his
individual’s interest
in the commercial value
identity
has been
as
in nature12 and sometimes denomi-
regarded
proprietary
nated
This
has won in-
a common law
“right
publicity.”13
as well
endorsements
creasing judicial
recognition,14
by legal
may not
suggest
misappropriations
of one’s likeness
11Thisis
that commercial
injure
person’s feel
misappropriations may
injuries.
inflict noneconomic
ings
Commercial
First,
may
exploitation
find
ways.
person
commercial
several
Second,
may
acceptable
be
commercial uses
undesirable and offensive.
while certain
desirable,
(See, e.g.,
Sales
distressing.
O'Brien v. Pabst
particular
may
use
even
Third,
individuals,
(5th
1942)
unaware that the use
other
Cir.
124 F.2d
Co.
unauthorized,
identity
purpose,
who
sell their
for that
may disparage one
would
is
Treece,
embarrassment,
(See generally,
su
thereby inducing
anger or mental distress.
638-648; Note,
Right
Community Property Interests
pra,
pp.
The of right publicity or he has created values from the publicity and profit to control at 216. See p. Prob. Contemp. 19 Law & (Nimmer, supra, purchased.” of “The distinctive aspect at Note, p. 25 L.Rev. UCLA supra, the commercial is that it recognizes publicity law right the common or person perform- prominent of a or picture representation value of the of his public in the profitability interest er, his proprietary and protects Inc., at (Ali F.Supp. 447 Playgirl, supra, v. reputation ‘persona.’” are illustrative. 728.) Two decisions leading Inc., 146], page at 788 N.Y.S.2d Systems, supra, 72 Misc.2d v.
prises, [340 Inc. Urban Inc., 17]; Esquire, su- Grant v. 544 N.Y.S.2d App.Div.2d modified 42 affirmed as [345 Hendricksen, 880; F.Supp. pages at supra, 316 v. page at Uhlaender pra, 367 1205, 1206; McQueen v. 1280-1283; 1969) (8th Cir. 415 F.2d v. & Co. Cepeda Swift 63, 65-66], grounds other 224 reversed on (1968) S.E.2d Ga.App. 117 488 Wilson [161 Kislak, (1967) N.J.Super. 327 I. Inc. 97 313]; v. J. [235 Ga. 420 S.E.2d Canessa [162 Co., 1957) Phil.Cy. 114 62, (Pa. Ct. C.P. 75-76]; Barnes & Inc. Hogan v. A. S. A.2d Note, Fig- Public Publicity—Protection Q. (discussed Right P. 314 U.S. for 527, 535-536); Ettore v. Philco (1976) Brooklyn L.Rev. 42 ures and Celebrities 487, 489-492; 481, Haelan 1956) Broadcasting (3d Cir. 229 F.2d Corp. Television 868; Gum, Inc., Laboratories, page at U.S. supra, 202 F.2d Topps Chewing v. Life 292; 289, Pabst 1951) O'Brien v. 238 S.W.2d (Tex.Civ.App. Ins. Co. Hamilton Harris, Holmes, Co., J.); Munden v. (dis. opn. of page at 170 supra, Sales 124 F.2d 1079; (1907) N.J.Eq. Polyform Mfg. Co. 73 v. Edison supra, page 134 S.W. at Edison 392], 136 A. right com- recognizing to control the increasing a distinct Despite this trend toward likeness, right development of this has been exploitation of one’s name and mercial spasmodic. categorized might adjudicating claims which courts part consequence This is in (See cases right publicity privacy claims. plaintiffs as invasions commentators, 20, imped- has resulting noted post.) The confusion often cited in fn. Note, Hastings pp. L.J. at right. (See, e.g., supra, development ed the of the Likeness, Name, History 752-754; Gordon, Personality and Right Property in 554, Note, Brooklyn L.Rev. at (1960) seq.; supra, et Nw. U.L.Rev. 527, 540-541.) pp. due, carefully the na- litigants to delineate failure of part, This confusion is to the However, equivocation a certain amount sought to be vindicated. ture of the interest right variety pri- is discussed as a surprising publicity when the is not right. The property as a vacy, right, promptly then described personal and Torts, person’s of a appropriation example, discusses Restatement Second of name or likeness under the (§ 652C.) That privacy. rubric of the (§ 6521.) death. How- nonassignable upon to terminate personal and deemed to be ever, confer protection “appears... also states that the the Restatement Second 652A, (§ b), com. something analogous right upon the individual” to a 652C, rights may (§ a), that survival assignable com. one’s name is to use b). (§ com. oe held to exist 754; Note, 15See, Note, Hastings page L.J. at 25 UCLA e.g., supra, 29 1096, 1102-1109; Comment, Privacy, Appropriation, and the First pages L.Rev. Landing Rough Rather B.Y.U.L.Rev. A Human Cannonball’s Amendment: 545; Teeter, 587; Note, Privacy page Pember & Brooklyn L.Rev. at 87-88; Time, Treece, supra, 51 50 Wash.L.Rev. the Press since Inc. v. Hill *23 Inc., Laboratories, Gum, In Haelan Inc. v. Topps Chewing 202 F.2d had an with a plaintiff, exclusive contract baseball to use the with the player connection sale of player’s photograph similar use plaintiffs chewing gum, prevent sued defendant’s of the The lawsuit player’s photograph. viability plaintiffs depended court’s determination of the interest in his own likeness: if the player’s interest consisted of the player’s only right privacy, plaintiff could not maintain its incapable action since was player’s right assignment. law, New the federal found York court of that
Applying appeals each had an addition to a enforceable right privacy, person statutory his in the value of right publicity photograph, “right publicity.” such interest could transferred personal privacy, Unlike right i.e., of a business accompanying “‘in without transfer gross,’ any else.. .. it is common knowledge many promi .For anything [¶].. nent and far from their persons having actors (especially ball-players), likenesses, bruised of their would feel public exposure feelings through if received for adver sorely deprived authorizing no they longer money tisements, countenances, in newspapers, their popularizing displayed busses, This would magazines, subways. publicity trains and right it them no unless could be made the of an usually yield subject money other their using pictures.” exclusive (I which barred advertiser grant d., plaintiffs the court held that claim Accordingly, had been dismissed. improperly Studios, (S.D.N.Y. 1975) 400 Hal
Price v. Roach case. similar to the Plaintiffs remarkably present involved a controversy (Laurel and Har widows of Laurel and Oliver Hardy were the Stanley to use and with a contract the exclusive corporation dy) names, Laurel’s likenesses characteriza merchandise and Hardy’s defendants, Plaintiffs owners alleged copyright tions. misappropriated motion had pictures, certain Laurel Hardy for commercial the two deceased comedians names and likenesses of court, Haelan, held that Laurel and citing merchandising purposes. the use their names and likenesses had a had Hardy privacy. from the completely separate their lifetimes during to their Further, respective was held to descend their publicity death, exploited either his right whether regard wives without upon (Id., 843-844, 846.)16 at pp. According lifetime. during publicity 647-648; Horowitz, 1.4, 6-7; pages pages Hofstadter & section Texas L.Rev. at Gordon, supra, 55 553. Nw.U.L.Rev. understanding of the distinctions be- thoughtful analysis reflects 16The court’s *24 ly, defendants’ interest in certain Laurel and notwithstanding Hardy motion and pictures, plaintiffs were held to be entitled to in damages junctive relief use for defendants’ unauthorized commercial of Laurel’s and Hardy’s of rights publicity. each has is that a person these decisions a
Underlying recognition his to decide how industry,” right the fruits of own “right enjoy to (Uh will be exploited. and value in his identity when the commercial Hendricksen, Nimmer, at 1282. See p. v. supra, F.Supp. laender 216; Note, at 1977 Utah Contemp. p. supra, 19 Law & Prob. use 818.)17 one an unauthorized of another’s L.Rev. at When makes enriched, is hav for his he advantage, unjustly own commercial identity of public and control that individual’s ing usurped profit image.18 both in implicit according judi Further, objective is a broader social there to policies analogous of right publicity, to the cial protection Court de recently The Supreme and law. patent copyright underlying as copyright protection encouraging of the purpose granting scribed creation...,” and artistic to intellectual to themselves devote “people such labors for the entire the benefits of society. and secure thereby right tween the of right and the of privacy. “While much confusion is publicity generated by right the notion that the publicity right emanates from the classic privacy, rights the two clearly separable. are The protection upon from intrusion an in- hand, privacy, dividual’s on the protection one and appropriation of some element of an ent in hand, individual’s personality for exploitation, commercial other are differ- theory scope. in « “Since the right theoretical basis privacy, for classic statutory right York, in New feelings, is prevent injury to logical death conclusion to such addition, foundation, claim. In upon based the same theoretical right such a of privacy assignable during not determining life. scope right When publicity, how- ever, one must take into purely account the commercial of the protected right. nature Courts just and commentators recognizing right have done that in publicity assignable. There appears logical no be reason to terminate this upon death of person protected. reason, It is for this presumably, publicity this has been ‘property right.’” (Fns. {Id., 843, 844.) deemed a omitted.) pp. at Hendricksen, 17In Uhlaender page the court held celebrity “... legitimate has a proprietary personality. interest in his public A ce lebrity must be considered to have his years practice competition invested in a public personality eventually may identity, reach marketable status. That em name, likeness, characteristics, bodied his personal statistics and other is the fruit of type labors and is property.” 18Implicit affording an individual the exploitation to control the commercial his or her name and likeness is the entirely prevent limit or such use. Such may limitation the of motivated an effort to husband the value or a refusal to allow identity Thus, use of one’s promote products. recognition sale commercial right provides protection as well being individual’s interest sub jected exploitation. (See generally, ante.) commercial fn. *25 163,
(Goldstein (1973) 546, 412 U.S. L.Ed.2d v. [37 California (1978) 1.03[A].) 1 Nimmer on 93 S.Ct. See Copyright § 2303]. the in one’s for economic value legal protection Similarly, providing a exploitation power commercial creates unauthorized identity against skills or develop ful for time and resources to the expending incentive in that the public achievements to and assures prerequisite recognition ” .. “to the reward of his endeavors.. dividual will able reap Co., (Zacchini 433 U.S. at Broadcasting v. Scripps-Howard the beneficiaries are 975].) L.Ed.2d at While immediate p. p. 573 [53 identities which are commercially those who establish professions valuable, society the of their are often beneficial to products enterprise enrich our so Their inventions and endeavors performances, generally. communi enterprises while their commercial ciety, participation may (See id., pp. to at 576-577 cate valuable information consumers. [53 Note, L.J. at 767- pp. at pp. 976-977]; Hastings L.Ed.2d 768; v. Note, Zachini the First Amendment: Human Cannonballs and 1185, 1186, Broadcasting Co. 30 Stan.L.Rev. Scripps-Howard 7.)19 fn. for the economic protection
The reasons for affording independent the as attested by and compelling, value in one’s are substantial identity (See so. fn. done number of have increasing jurisdictions publicity individual’s of ante.)20 that an persuaded I am similarly recognizing suggested may benefit which flow from 19Onecommentator has related pictures publicity: appears an of “The of celebrities’ names and individual’s use advertising. probably be a of would continue to use celebri characteristic Advertisers pictures freely use of they ties’ even if knew that other advertisers could make similar words, pictures. pictures other free names and devel same names and if use of attention, provoke oped, they emulation, and, probably would continue attract the consumer’s society names perhaps, suggest sponsorship. If chooses to allow uses of might advertising, not be about the prefer and likenesses in willingness it that consumers misled give product might celebrity of a associate himself with a or service.-It further uses of names and celebrities a cause ance of that consumers would channel itself trol action for unconsented likenesses ‘emulating’ objective. Similarly, might decide behavior society con acceptably persons more if the emulated had some particular products. decision to link their names and likenesses over the Indeed, coercing might find that adver persons personalities whose attract consumers advertising interests. forego tisers behavior advances their some forms of undesirable advertising pro thus Allowing personalities individuals to control the use their could (Treece, advertising supra, 51 regulation.” vide law for private mechanism omitted.) Texas fn. L.Rev. ap jurisdictions for its contention that from several relies on decisions 20Universal Such privacy. only protected under likeness is name or of one’s propriation cases, principles result reached its under the court misplaced. In several reliance is governing its an invasion had based claim on plaintiff because privacy Productions, (7th 1965) Cir. 345 F.2d v. Desilu (See, e.g., Maritote right. of that 418, essentially sought plaintiffs by the several relief 420 [“...all is entitled to the law’s protection.21
The common law can
accommodate
readily
judicial recognition
right of
‘“The rules of the common law are
publicity.
continually chang-
ing and
progress
society
with the
in which it
expanding
prevails.
behind,
It does not lag
but
itself
the conditions
adapts
present
(Johnston
so that
the ends of
be reached.’”
justice may
20th Cen-
Film
tury-Fox
P.2d
Cal.App.2d
474].)
Corp.
this
Specifically,
recognized
court has
that the
*26
long
concept
“proper-
is not static but
ty”
to accommodate creative
and
changes
developments
legal
novel
For
relationships.22
example, courts have recognized protec-
292,
tible
in
(1865)
interests
trademarks
v.
(Derringer
Plate
29 Cal.
294-295;
563,
(1930)
Hall v. Holstrom
106
568
P.
Cal.App.
[289
668]),
(Jackson
titles of
works
literary
v. Universal International Pic-
tures,
(1950)
Inc.
Century-Fox Corp., supra, (International News v. Associated and dissemination of news Service 68, 2 293]), 39 S.Ct. A.L.R. Press 248 U.S. L.Ed. [63 expectation and ideas communicated in confidence or reasonable 502, 506, (see (1975) 14 fn. 3 consideration Davies v. Krasna Cal.3d 79 A.L.R.3d collected]; P.2d Cal.Rptr. [121 807] [cases Products, Research, For Inc. v. Isolation Components enti- The Cal.App.2d Cal.Rptr. 829]). publicity (See Nimmer, tled 19 Law & Contemp. to similar treatment.23 Prob. at p. minimum Legislature recently provide 23The enacted Civil Code Section 3344 to damages in appropriation amount of vasion of concern with commercial where an unauthorized commercial constitutes an Legislature’s statutory remedy privacy. creation of this evidences its identity, thereby re misappropriations of an individual’s recognizing protection in the related area of the propriety inforces the right common law publicity. name, “(a) provides: Any person knowingly photo- Section who uses another’s likeness, manner, merchandise, merchandise, advertising products, graph, goods goods purposes *27 services, products, purposes purchases or or for of solicitation of of services, consent, or, minor, person’s prior such in the case of a the or without damages prior parent legal guardian, any shall be liable for sustained consent of his or addition, brought injured any In in by person persons the or as a result thereof. action section, injured par- section shall be liable to the person under this who violated the ty ($300). parties or in an amount no less than three hundred dollars it “(g) cumulative and shall be in addition provided The remedies for in this section are any provided by to others for law.” Legislature legislative strongly suggests that the was con- history of section 3344 right proprietary interest in privacy, cerned with an individual’s to not an individual’s analysis, Legis- Assembly Judiciary her likeness. The Committee’s his or lative name and (1971 Legislative Digest Assembly of Bill No. 826 analysis and the Counsel’s Reg. Sess.), problem presented as an which became section all characterized the Com., (See, e.g., Analysis of Bill No. 826 privacy.” “invasion of Assem. Jud. Assem. 14, 1971) (Vasconcellos) (1971 Reg. Sess.) (June p. 1. also Stilson v. amended See Assn., Inc., 273.) supra, Cal.App.3d p. at As the bill’s author ex- Digest Reader's law of invasion plained, “[tjhis gap bill fills a which exists in the common tort of damages for the provide a minimum amount of
privacy in the state of California”: by an commercial use. privacy invasion of the “little occasioned unauthorized man[’s]” protection to imperative equipped provide law be some sort of t becomes that the “[I] the provides simple, bill civil privacy.This citizen from an invasion individual (Letter Assemblyman to Gover- remedy injured individual.” Vasconcellos for 10, 1971) signature (Nov. Reagan recommending 826 for his nor Assem. Bill No. right added.) privacy, there is In to these numerous references to italics no mention in the contrast right the economic inter- legislative publicity documents of the protected est thereunder. context, right priva- law limitation on the In this it is consistent with the common ante, (See maj. p. opn., heirs. cy provide not to for an action one’s for statute However, 6.) establishing parameters of is irrelevant in fn. such a limitation Moreover, Legislature unequivocally right publicity. law the distinctive common other (g) statutory remedy this be in addition established in subdivision that actions, with related common law provided law and thus would coexist remedies of an argues judicial recognition independent right un- is afforded publicity unnecessary light adequate protection However, der the common law the interest at stake right privacy.
most commercial protection cases is ill-suited to under appropriation First, the umbrella of the the raison d’etre of the com- privacy. mon law is assaults on one’s privacy protection against feelings; an unauthorized commercial appropriation precipitates only usually loss, Second, economic not mental since the anguish.24 representation the individual is often substantial acrobatics are re- linguistic flattering, quired to construct a claim on the the use privacy ground is (See Note, offensive to a reasonable 1977 Utah L.Rev. person. supra, Association, Inc., at pp. 818-819. Cf. Briscoe v. Reader’s Digest supra, 541, 543.) Third, at Cal.3d if information about a is pp. al- person domain, public there can be claim for an ready no invasion of extent, to that privacy; has been Yet it privacy waived. is publicity creates value in the individual’s frequently To identity. a claim for deny for commercial because the damages misappropriation claimant is prominent to the individuals to deny very Fourth, whom the right most valuable.25 if treated as an aspect of pri- the use of one’s vacy, for commercial not be identity purposes may (See assigned because is a privacy personal, fn. nonassignable right.
ante.) interest, Such a limitation this economic precludes transferring (See Nimmer, thereby its substantially diminishing value. Laboratories, 209-210;
Law & at Contemp. pp. Prob. Haelan Inc. v. Gum, Inc., short, Topps Chewing F.2d con- *28 forming a claim for the misappropriation of commercial value in one’s identity of the requirements right privacy a requires Pro- crustean jurisprudence. Weinstein, including infringement (See right publicity. an action for the of the Com- Appropriation mercial Name Likeness: Section 3344 and The Common Law 430, 432-433, 435, (1977) 454-455.) J. 52 L.A. Bar genuine privacy 24This fundamental distinction is not undercut because a invasion of may pecuniary example, publication previously also result in loss. For private in may injured formation result in an economic if a party loss client of severs their relationship light publication. injury feelings, of that The direct harm is the eco contrast, being entirely nomic loss derivative. In the unauthorized use of one’s name for addition, purposes injured commercial inflicts a direct financial loss. In party’s eco definition, privacy rarely By nomic loss in a action benefits the tortfeasor. appropriation using person improperly intended to benefit the the name or likeness. Finally, person need not suffer economic harm to state claim for an invasion of contrast, privacy; in economic is the essence of an misappropria loss action based on a Hendricksen, (See tion for purposes. supra, p. commercial Uhlaender v. 1280; Comment, 1103-1104; Prosser, supra, pp. L.Rev. at supra, UCLA 48 Cal. 406; Note, Hastings supra, p. L.Rev. at L.J. at Nimmer, 204-206; Note, Contemp. & pages 25See 19 Law Prob. at Scope
B. The Right Publicity of the parameters must now be publicity considered. This case two presents questions: whether the extends to the character; likeness of an individual of a fictional portrayal whether dies with the individual or be to one’s may passed heirs or beneficiaries. use commercial the unauthorized protects against
Because the right name to the person’s right clearly applies identity, of an individual’s be insufficient However, appear such would protection and likeness. “natu- in their only not recognition create many people public because Charlie characters. of particular but in their appearance portrayal ral” and Flip Archie Bunker Carroll O’Connor’s Little Chaplin’s Tramp, creations. Substantial such exemplify and Geraldine Judge Wilson’s in their of these actors in the likeness each value exists publicity in controlling interests and economic professional character roles. The these while portraying of their likenesses the commercial exploitation the use of their controlling their interests in characters are identical to en- Indeed, one’s professional to the extent own “natural” likenesses. or more particular of one on the development deavors have focused of those portrayal likeness in for one’s images, protection character protection than considerably important well more may characters be no Hence, there appears appearance. the individual’s “natural” to one’s own like- extend should not publicity reason why character.26 fictional particular ness while portraying such a Count Dracula is clearly in his portrayal likeness pictures Dracula in motion Count men have portrayed case. Many did license However, that Universal the trial court found on stage. character, distinc- but the Count Dracula use of an undifferentiated the notorious portrayal tive and readily recognizable *29 the par- capitalize to thereby sought count. Universal Translyvanian the of Count Dracula portrayal in this Lugosi ticular of image Hendricksen, at supra, v. Cf. page UCLA at 1107. Uhlaender L.Rev. page 1283. image or representation likeness—a protection only to the individual’s 26This extends Nothing is intended herein character. person—while portraying particular of the the Nothing in the or character itself. protection for the character to the extend to the idea playing a developing and right publicity prohibits example, for person, of another portrayed by Chaplin. tramp to the one sympathetic character similar his Such use is recognition generated by performance. illustrative public Hence, of of the interests the is intended very publicity protect. had a interest in Lugosi protectible controlling unauthorized his likeness in his exploitation portrayal commercial of of Count Dracula.
Recognizing Lugosi’s interest in the use legitimate controlling of Count limits portrayal Dracula neither the author’s exploitation the novel Dracula27 nor use of copyrighted Universal’s its motion pic- Lugosi ture. allow only agreed to Universal to make limited use of his Further, in likeness their 1930 contract. does Lugosi’s right certainly not prohibit others from Count portraying character Dracula. Con- sequently, nothing established herein that suggests individuals involved in cinematic theatrical contemporary revivals Count Dracula’s nocturnal adventures have violated Lugosi’s right The publicity. prohibited conduct is the only unauthorized commercial use of Lugosi’s likeness in his portrayal of Count Dracula. To the ex- use, tent that Universal or another seeks such can be secured contract.28 protects proprietary interest publicity intangible the commercial value in one’s Like other identity. intangible property its value often be if rights, reaped cannot the individual not trans- may fer or part Indeed, all of that to another development. interest grant exclusive be before an rights may publicity required attempt promote use or likeness will be is person’s undertaken. Since it clear that is right viable unless I publicity hardly assignable, agree with recognized numerous authorities that have the right capable assignment.29 question rights case present copy 27This does not of the relative of the novel’s Lugosi holder and exploitations his heirs commercial likeness However, portrayal in his of Count it should noted that the Dracula. be trial court always public found that novel Dracula been in the domain in the has United comply requirement copyright
States due the author’s with a of the failure law existence when the novel published. was portrayal joint 28Where of a character is of a product enterprise, fictional rights respective parties can established contract. The contractual relation III, ship post. between detailed in section Arts, Inc., Etc., 29See, e.g., 221; supra, page Factors Inc. v. Pro F.2d at Cepeda Co., Laboratories, 1206; Inc., supra, page v. & at 415 F.2d Haelan Topps Swift Gum, Inc., 868; Prosser, (4th Chewing supra, page 1971) F.2d Torts ed. section 807; Gordon, 611; Nimmer, page page 55 Nw.U.L.Rev. at 19 Law *30 Contemp. page & Prob. at 216. 846 bene-
It to one’s heirs or may passed clear that the equally right is of question death. In considering ficiaries the individual’s upon at is the that what is issue it be remembered must right’s descendibility, likeness in commer- of one’s name and interest in value proprietary No privacy. policy like the of right cial not a enterprises, personal right of publicity me that the right has been which suggested persuades intangible property death like other “. . .should not descend at Co., Etc., 444 at (Factors F.Supp. Inc. v. Creative Card supra, right.” after 284.) Further, granting protection protection, p. copyright in of resources incentive for investment death an increased provides of one’s right public- which the value augment one’s profession, may descendible, is able transfer is individual right If the ity. that successors and assured of his labor to his immediate benefits be vested in a suitable benefi- can control over the exercise death, advertisers upon “There reason why, celebrity’s is no ciary. freedom to use with impunity in the form of should receive a windfall who have worked celebrity may or likeness of deceased name that benefits of status. financial celebrity or her entire life to attain ” (Note, 42 Brooklyn supra, heirs. .. . go celebrity’s labor should 547.)30 at p. L.Rev. in activities and
However, of resources the investment encouraging providing protection from which values arise publicity careers necessitate perpetual protec- interest does not the resulting proprietary family immediate Assurance one’s tion for the of publicity. of one’s right will be entitled to the residual value and successors Further, recognition is a incentive. after death sufficient publicity interest in con- an individual’s premised part publicity so commercially exploited, he or she is the manner trolling professional or her than undermines his use furthers rather such death publicity decisions which have considered whether the survives 30Those Inc., Etc., Arts, Factors Pro (See, v. inheritability. e.g., have in favor its ruled Co., Etc., 221-222; supra, supra, Inc. v. Creative Card 444 Factors pp. F.2d 579 at Factors, Etc., Inc., su 282, 284; Memphis Development Foundation pp. v. F.Supp. at Studios, Inc., 1330; pra, supra, Hal F.Supp. at Price v. Roach p. 400 at 844; (E.D. Corp. Shaw United Artists p. I11.) (unreported, 54 C 290 discussed Gordon, 600).) supra, approved by has numer Nw.U.L.Rev. at This result been Note, 767-768; Note, e.g., Hastings legal (See, pp. ous L.J. at commentators. 541-547; Note, Why Pri Right Not A Relational Brooklyn pp, at L.Rev. Sobel, 183; vacy—Or Right Property? City 42 Mo.—Kansas L.Rev. 375-376; Publicity (1972) 47 Right Dracula and the Bar Bull. Count L.A. Names, De Donenfeld, or Personalities Property Rights or Other in the Likenesses 17; Gordon, supra, ceased Persons Copyright Soc’y. 16 Bull. Nw.U.L.Rev. 598-599, 612-613.) pp.
847 death, activities. With the individual’s need to control the commercial uses of his as an to his ceases. identity Providing legal career adjunct serves ex- protect after death protection long basically continuing of the a be available ploitation right, protection may already ante, (See under the of competition. opn., pp. unfair 818- theory maj. Fields, (1962) 819. See in a Name? 35 generally, What’s So. Stage 149, 149-154.) time, Cal.L.Rev. with of an individ- Finally, the passage ual’s fabric is woven into the as a heroic or obscure identity history, sense, character past. of the In that the events and of his measures life are the public domain and are in the placed control of a questionably particular descendent.
The for fixing precise date the termination of the of pub- decision, licity inherently one policy be Legislature may However, best able to action, determine. in the absence legislative limit must be In prescribed. common law fashioning rights reme- dies in the this past, court has often considered federal state (See, statutory schemes for re guidance. (1965) e.g., Waltreus 62 218, Cal.2d 224 397 Cal.Rptr. 1001]; P.2d Estate Mason [42 62 Cal.2d 217 397 P.2d Cal.Rptr. 1005].) Since the [42 an interest in publicity recognizes intangible similar in many respects (Zacchini to creations protected law by copyright Co., Scripps-Howard 433 at Broadcasting U.S. 573 supra, p.
L.Ed.2d at p. 975]), that of law is instructive. body (17 Act of Copyright 1976 et seq.) U.S.C. 101 that a provides § copyright new works shall be recognized during author’s life and (17 for 50 years thereafter. (a).) U.S.C. 302 That period represents § reasonable evaluation of the to effect the period un necessary policies derlying Therefore, I hold publicity. would that the publicity should recognized life and 50 during subject’s years (See Comment, thereafter. 1124-1128; 22 UCLA L.Rev. at supra, pp. Note, at Nimmer, L.J. supra, Hastings p. 773. Cf. Does Copyright Abridge the First Amendment Free Guarantees and Press? Speech 1193-1194.)31 UCLA L.Rev. deluge recognition any right 31Universal that the death asserts after will courts concerning long-dead specious complaints trivial and the use the names of nota bles, limitations, e.g., argument Henry unpersuasive. VIII. This The statutes of right, on the difficulties proving absolute limitation duration of and the owner ship right, descendency, provide ample of that mere stale will barriers to claims. Bull, Gordon, 601; Sobel, (See at pp. Nw.U.L.Rev. L.A. Bar 403-404.) *32 exercise is an individual must
The final whether question presented in- lifetime as a condition of its his or her publicity during the of right need that an individual The holds weight authority heritability. it from use others or to “to publicity protect exercise one’s right (Price v. Hal Roach Stu- of one’s heirs.” right preserve any potential dios, Inc., 846.)32 A not have person may at F.Supp. his lifetime due to his name or likeness during commercially exploited Perhaps medium or an death. early the absence of the appropriate to retain its full value as a leg- individual chose not to exercise the right with the rationale Since those choices do not conflict for his heirs. acy should not af- the failure to exercise the right for recognizing right, fect its inheritability. in a
Further, ascertaining particu- method for there is reasonable no to warrant passing been sufficiently exploited lar case if the has stan- practical There are no to the decedent’s beneficiaries. the right are required and what of use period which uses measuring dards for rules, publicity Absent clear create a protectible right. Hence, of the right the exercise requiring be lost unwary. might condition for inheritability lifetime as a during person’s publicity but im- the right inconsistent with the rationale underlying is not only on its preservation.33 an ill-defined poses prerequisite interest in the person’s hold that a prominent I would summary, is her name and likeness uses of his or economic value of commercial a right This interest denominated under the common law. protected Harris, Inc., 880; page at Munden v. su Esquire, supra, 367 32See Grant v. 1078; Note, Hastings pages 764-766. But see supra, 29 L.J. page S.W. at pra, 134 Arts, Inc., Etc., page F.2d at footnote 11. Pro Factors Inc. v. publicity an individual’s appear to have concluded that majority 33The would during assigned by the individual may exploited after his death if exercised ante, text, 819-820, prop explained in the such a (See maj. opn., pp. As lifetime. this case. unpersuasive under the facts of illogical. particularly It is osition is Actors, through popularity the medium of their Lugosi, continually exploit their like consciously public’s interest in and employers trade on They and their profession. case, recognize, Lugosi granted majority Universal recognition them. In this likeness, sought parties profit as both from his use of his right to make limited majority’s analysis, such conduct would be suf- of Count Dracula. Under portrayal Lugosi’s it did Lugosi’s right publicity after death as exploit ficient for Universal merchandising Lugosi granted licensing agreements, if had subject in the Yet, Lugosi incongruously insufficient for to re- such conduct is rights contract. in their Universal, Lugosi’s right publicity assigned to rights his heirs. Once such tain setting majority But the medium and found. until a suitable may remain dormant undeveloped in his own likeness as a right to retain his interest deny would wholly unjustified. distinction is heirs. Such a legacy for his and is publicity assignable. is descendible is accorded legal protection the individual’s lifetime and for a during period of 50 years thereafter. found Universal licensed likeness in Having Dracula, his distinctive of Count the trial court held portrayal properly such use infringed Lugosi’s right Since inher- publicity. plaintiffs *33 death, ited that are entitled to right upon Lugosi’s relief for they Universal’s tortious conduct. Preemption Expression Copyright,
C.
and Freedom of
Universal asserts that a common law
interest
in one’s
proprietary
name and likeness
not be
because
may
recognized
such
is
recognition
preempted by congressional
under the
legislation
copyright clause of the
Sears,
(See
United States
Roebuck
(a);
Constitution.
17 U.S.C.
301
§
& Co.
Co.
v.
[11 shall have the power of science promote progress and useful “[t]o arts, for limited by securing times to authors.. .the exclusive (U.S. Const., I, their... writings....” art. cl. § clause,
Under could, most, this at enact Congress legislation govern- (See all ing 102.)34 “writings.” 17 U.S.C. The United States Supreme § Court has defined recently “to include writings any physical rendering (Goldstein of the fruits of creative intellectual or aesthetic labor.” California, 412 supra, U.S. at 561 p. L.Ed.2d at See 1 p. [37 177]. 1.08.)
Nimmer on Copyright, supra, intangible inter- proprietary § est protected does not constitute a publicity simply That writing. interest be valuable due to the individual’s may creative labors, intellectual but the value publicity these labors is generated by not focused in a To conclude “physical rendering.”
publicity subject under congressional regulation copyright clause is to find that mind, an author’s but only writings, also are subject Thus, such control. Such a position untenable. congres- sional action has not preempted common law recognition Price v. Hal (Accord Roach Stu- protection publicity.
dios, Inc., supra, 845-846.) 400 at pp. provides part: “Copyright protection original 34Section 102 subsists.. .in works of
authorship any tangible fixed in expression, developed, medium of now known or later communicated, they from perceived, reproduced, can be or otherwise either di rectly or with the aid of a or device.” machine doubt on Any this issue was removed the recent United States Su- preme Co., Court decision Zacchini v. Scripps-Howard Broadcastig 433 U.S. supra, 562. That case involved a television broadcast of plain- tiff’s entire performance in a human cannonball act. The Supreme Court found no impediment the State of Ohio providing plaintiff with the to the “‘right publicity (Id., value of his performance.’” at p. L.Ed.2d at “The p. 969].) Constitution does not prevent Ohio [53 from. . .deciding protect the entertainer’s incentive in order to en- courage production (Id., of this at type work.” p.
L.Ed.2d at
If
p. 977].)
federal
law
copyright
does not
preclude
state
protection to an
granting
uncopyrighted performance, a fortiori
the recognition of common law protection for the
interest in
proprietary
one’s name and
(See
likeness is
Note,
immune from such attack.
85;
Brooklyn
Note,
L.Rev. at
fn.
Stan.L.Rev.
*34
pp.
fn.
1192-1194. Cf. Kewanee Oil Co. v.
Bicron Corp.
416
U.S. 470
L.Ed.2d
Recognizing to Lugosi’s right of in his publicity of Count portrayal Dracula does not interfere with the rights granted Universal under federal law in its motion copyrighted picture Dracula. film, producing bargained paid Lugosi for only limited rights: employ Lugosi Count Dracula in the portray pro- (See duction of one motion picture. III, in discussion section post.) Universal was and is free to exploit Lugosi’s performance in that film within the confines of the law. Universal copyright can no more com- plain that its inability merchandise Lugosi’s precludes the full image use of its motion picture than protest its to use inability scenes from Dracula in another motion picture restricts such use. Not having (Accord for such bargained there is no rights, entitlement. Price v. Hal Studios, Inc., Roach 400 842-843.)36 at supra, F.Supp. pp. appears 35It misplaced Universal’s reliance on preemption doctrine was based, part, in misunderstanding on a scope rights recognized by the trial Lugosi’s court. beneficiaries were not declared any to have control over the Count Dra Nothing Lugosi’s
cula character. publicity precludes portraying others from Count exploiting Dracula and filming Rather, such characterizations. was likeness, declared to proprietary have a interest in his which includes his likeness in his portrayal (See 844-845, of Count Dracula. pp. ante.) discussion at 36Universal relied on several decisions which refused to find protectable interest plaintiffs performance protection where significantly such would interfere with the underlying (See, use of an copyrighted e.g., work. Goodyear Sinatra v. Tire & Rubber (9th 711; 1970) (S.D.N.Y. Co. Cir. 435 F.2d Colgate-Palmolive Booth v. 1973) Co. I Finally, am sensitive to the fact that enforcement of the conflict with freedom of in some How publicity may expression cases.
ever, such a conflict is not
in this case. Plaintiffs
presented
challenged
Universal’s
likeness in his
of Count Dra
licensing
portrayal
cula in connection with the sale of such
as plastic
objects
toy pencil
sharpeners, soap products,
target games, candy dispensers
beverage
rods. Such
stirring
conduct
the First Amendment.
hardly implicates
Inc.,
(See Rosemont
Inc. v. Urban
Enterprises,
Systems,
supra,
Misc.2d 788
at
N.Y.S.2d
affd. as
pp. 146-147],
mod.
App.
[340
Div.2d 544
N.Y.S.2d
[games]; Rosemont
Enterprises
[345
17]
Productions
Choppy
pra,
III. 1930 Employment Agreement In their 1930 employment agreement, Lugosi granted Universal cer- tain to use his rights likeness and as Count appearance Dracula.37 The trial court interpreted the contract to entitle Universal to use Lugosi’s likeness in the motion and in only picture Dracula related advertise- ments. Universal argues that provision in that grant-of-rights contract entitled Universal to license of Count Dra- Lugosi’s portrayal cula in connection with the sale of commercial merchandising products. 362 F.Supp. Protecting plaintiffs’ interest in this case does not limit Universal’s Hence,
ability to broadcast or advertise Dracula. those decisions wholly are irrelevant to the presented issues here. 37Paragraph 4 of grant rights the 1930 contract contains to Uni producer versal: “The shall photograph have the produce, otherwise and/or transmit, exhibit, distribute, reproduce, exploit photo- in connection with the said acts, any play and all poses, plays the artist’s appearances and all kinds hereunder, record, transmit, exhibit, and shall further have the reproduce, dis tribute, exploit voice, photoplay connection with said the artist’s and all instrumental, musical, and other produced by sound effects the artist in connection
852 interpretation if the trial court’s contends that correctly contract, the interpretation of the on an examination
were based solely re court will independently law and this question of the contract is a Insurance construction. (Argonaut of the trial court’s validity view 496, 3d 502 Cal.Rptr. Co. 6 Cal. v. Indemnity Co. Transport [99 However, if court were 617, presented the trial 673].) 492 P.2d contract, aid in the interpretation evidence to extrinsic conflicting the trial court which of the agreement by “a reasonable construction (In re be upheld. evidence will substantial supported by [Citations.]” 738, (1976) 17 746-747 Cal.Rptr. Fonstein Cal.3d Marriage [131 4 873, v. Valve & Co. 1169]; Regulator 552 P.2d Grove Grove Witkin, 299, Cal. See Cal.Rptr. 300], generally, Cal.App.3d [84 4225-4226, 245, (2d 1971) 235 and pp. Appeal, Procedure ed. §§ 4236-4238.) on the with conflicting expert testimony
The trial court was presented and on provision under the grant-of-rights nature of the rights granted re- picture usually in a motion an actor employed perform whether in his likeness and merchandising rights tained or ceded the commercial Further, requested that in 1936 Universal it undisputed appearance. in its of Dracula’s production to use permission and received Lugosi’s Count Dracula Lugosi’s portrayal wax likeness Daughter a would not have sought It to infer that Universal Dracula. is reasonable Universal the broad if granted the 1930 contract such consent (See Warner Bros. which Universal now asserts. use likeness (9th 1954) Cir. 216 F.2d System Broadcasting Pictures v. Columbia (1960) 54 Cal.Rptr. Cal.2d Berg 949. Cf. Bohman [8 (1942) Trust Co. v. Title Insurance and 185]; 356 P.2d Tanner a substantial Such evidence 383].) provides P.2d Cal.2d interpretation reasonable the trial court’s sustaining basis for *36 Indeed, an contract.38 independent in the 1930 provision grant-of-rights acts, poses, plays appearances. producer right with such and shall likewise have the likeness, otherwise, to give publicity photographic use and to the artist's and or name instrumental, reproductions and to and of the artist’s recordations voice and all musi- cal, hereunder, produced by and effects other sound the artist in connection with the added.) advertising exploitation (Italics photoplay.” and said contract, Lugosi Universal entered following day the execution 38On the Lugosi’s use of services. agreement a for the exclusive option term contract into an 11, 1930, sought to confer September contract had parties If to the merchandising as Univer- products, commercial Lugosi’s exploit likeness language in contends, specific more incorporated could that contract have sal here 12, 1930, 4 agreement. Paragraph option September to the the term contract attached produc- hereby grant to the does also part: “The artist provided contract the term
853 examination of that with its provision, repeated contractual limitation on the use of likeness “in connection with said only photoplay,” reaffirms the trial court’s conclusion.39 assertion,
Contrary Universal’s Labor Code section 286040 does not a compel different result. “... is to be construed as but [Section 2860] an expression the familiar that forbids an principle trustee agent from using the trust or powers conferred him for his upon own (Burns v. Clark (1901) benefit....” 133 Cal. 639 P. Ac [66 12]. Southern Cal. Co. v. cord Disinfecting Lomkin (1960) 183 Cal.App.2d Weisser, 444 Cal.Rptr. 43]; Williams v. 273 Cal.App.2d [7 733-734.) at pp. cases, That statute to a limited class of applies primar ily involving exploitation of an confidential information employer’s or trade secrets aby former to the employee detriment. For employer’s example, statute has been considered in actions applicable to enjoin a former from unauthorized employee use of confidential information Steam concerning customers (Empire along route Laundry laundry v.
Lozier (1913) (Santa 165 Cal. 95 P. and an ice 1180]) route [130 Monica Ice etc. Co. v. Rossier (1941) 42 467 Cal.App.2d P.2d [109 (Cali 382]), confidential list of subscribers to specialized newsletter Intelligence Bureau v. Cunningham Cal.App.2d fornia P.2d 303]), and trade secrets concerning production of cactus [188 (Riess phonographic needles v. Cal.App.2d Sanford P.2d 694]). er, hereof, during of, term the sole and exclusive make use and to allow of, commercial, others to advertising, make use his publicity purposes name for and/or (other acts, than in connection poses, plays appearances with the of the artist here- under), distribute, as well as the sole and exclusive to make use of and and to distribute, allow others to pictures, photographs, repro- make use of and or other physical ductions of his likeness of his purposes....’’ voice for like assertion, 39Contrary to interpretation Universal’s court’s of the contracts at issue First, (9th 1954) in Republic Corp. Rogers inapposite. Pictures Cir. 213 F.2d specifically provided the contracts there for the use of the actor’s name and likeness for advertising purposes promotion (Id., pictures unrelated to the of the motion involved. at Second, pp. 663-664.) presented the issue there was pictures whether those motion expressly adjudicating
could be televised. The court stated it that was not contrast, (Id., advertising. p. 666.) use the artist’s name or likeness in commercial Studios, Inc., the court in Price v. Hal Roach confronted with case, language comparable present adopted contractual in the interpretation *37 (Id., 839-841.) pp. similar to the trial court’s construction. 40“Everything employee acquires which an employment, virtue of his except the compensation acquired lawfully employment.” employer, belongs which due to him from his to the employer, whether during unlawfully, expiration or or or after the of the term of his
No such conduct is here. is not “ac present alleged have quired” something improperly from Universal he exploited. Rather, the issue is to what extent can Universal exploit Lugosi’s por Count The Dracula. contract delineates trayal scope Universal’s it limited use to clearly exploitation entitlement: Universal’s (ante, 37). “in connection with The photoplay” said fn. extrinsic evi Hence, dence trial court construction. presented supports that entitled, contract that Universal be under negates any suggestion may 2860, to the doctrine embodied in section unlimited use of like v. Columbia (See Zahler Pictures ness while Dracula. portraying Count 582, Corp. Cal.App.2d Cal.Rptr. 612].) Damages
IV. Limitations, Statute Prejudgment Interest the trial court’s determination disputes appli- Neither party Code of Civil years, cable statute of limitations is two prescribed asserts, however, 339, 1. section subdivision Procedure 1966, than two after the years this action was initiated more because are plaintiffs first licensing agreement consummation barred from any recovery. un- licensing agreements
Universal concluded approximately 1960 and and continued to enter related manufacturers between contracts, after existing new to amend and renew into agreements, the first did agreement was The execution of this action commenced. or Universal to conclude others. compel otherwise contractually were not contracts mandated existing The extensions renewals I, therefore, with the trial the original agree the terms of agreements. represented and renewal thereof that each licensing agreement court The execution of each of plaintiffs’ rights. and distinct invasion separate have the others and each could independent support- was agreement Santa Monica (Cf. City Nestle cause ed a of action. separate Hence, 480].) 496 P.2d Cal.Rptr. 6 Cal.3d 937 [101 recovery. bar to complete the statute of limitations is not recovering damages were barred from The trial court held plaintiffs two before years executed more than licensing agreement for any (Code Proc., 312 and subd. Civ. of this action in 1966. filing §§ should not calculated period that the statutory Plaintiffs assert action, the 1963 but from the filing of the 1966 action filing *38 claims, which involved the same on the substantially ground 1966 suit is merely continuation of the 1963 suit.
While a lawsuit has been construed as the continuation of an earlier
(see,
action in several
on
decisions relied
by plaintiffs
e.g., Bollinger v.
(1944)
National Fire Ins. Co.
After an extended the court found were enti- plaintiffs tled to damages out of Universal’s after arising execution February 1964, of licensing agreements with 35 different approximately manufac- turers. While Lugosi’s portrayal of Count Dracula was the only character licensed in two of those agreements, each of the other con- tracts authorized the use of to ten up additional horror characters. Most of these agreements for the provided of a payment nonrefundable fee to Universal upon execution of the licensing agreement as partial con- sideration for the grant rights and an advance against the royalties to be paid for use of the licensed characters. Universal’s was royalty set usually as a percentage the licensee’s sales. contracts,
From these $260,000 Universal received more than royalties.41 $53,023.23 The trial court awarded of this plaintiffs amount for Universal’s licensing of Count Dracula. Lugosi’s portrayal raises numerous to this award. challenges
Because the use of
likeness
in this context resembles a copy
patent
infringement,
well developed principles for determin
damages in
ing
those contexts
provide
useful guide.42 Plaintiff has the
41 Universal received
royalties
hundreds of thousands of dollars in additional
in con
licensing agreements
nection with similar
plaintiffs
for which
damages
could not seek
due to the statute of limitations.
42See, e.g.,
Metro-Goldwyn
Sheldon v.
Corp.
856 the the defendant profits reaped
initial burden extent of proving by However, defendant’s its where a through misappropriation. portion but had derives from than unauthorized use defendant profits other the income, the “carries the burden of sources of defendant commingled he has con contributions of the several factors which disentangling (2d (Sheldon Cir. fused.” Pictures Metro-Goldwyn Corporation 1939) 48, affd. 390 L.Ed. 60 106 F.2d 309 U.S. S.Ct. [84 evidence, 681].) If the sufficient a fair division of provides defendant in the profits will result. “Mathematical exactness” apportionment However, (Id., is not U.S. 404 at required. p. 833].) 309 L.Ed. must reasonable plaintiffs every allocation “favor resulting (Id., chance of error.” 106 F.2d at p. in-
Universal’s an apportionment royalty conduct prevented and the other licensed come between the Count Dracula character accounting characters. Neither the nor Universal’s agreements licensing li- contract among allocated the from each system royalty payments isolated a few licensees about provided censed characters. The data trial certain not on this matter court. persuasive was agreements data, that one-third of the Absent more the trial court found compelling the use contracts should be allocated to income from multi-character Count Dracula.43 reflected the trial court’s assessment
This restrained apportionment com- resulting relatively greater public visibility of Count Dracula’s characters, other such as mercial value when to the licensed compared most the licensee’s secured the the Mutant and the Mole Man. While characters, se- consistently they to use some of available only assertion, plaintiffs cured the Count Dracula. Universal’s from each agree- amount to the equal royalty are entitled to an only characters, is based on the ment number licensed divided are valuable. equally that all horror characters unsupported assumption case, I the trial persuaded this am of Universal’s burden in light allocation was unreasonable.44 court’s Products, (D.Md. Colgate-Palmolive Inc. v. Co. (patent); S.Ct. Carter 691] Copyright (patent); 3 Nimmer on section 1963) Callman, Competition, Trademarks and Mo- The Law of Unfair 14.03[C], See also (b) (a), pages 285 and 89.3 306-310 (3d 1978) page 89.3 section
nopolies ed. section (trademarks). agreement some licensing was allocated multiple character from one 43The income agreement. concerning that light differently specific information what Sheldon, receipts percent to 12 of the defendant’s evidence that 5 there was 44In infringement; percent award of 20 was plaintiff should be allocated $14,000 Universal was the source of identify unable approximately *40 $260,000 of the received from horror character licensing royalties that Universal had not borne its burden of demon- agreements. Finding sum, the trial court allocated the entire sum strating origin to the that only Count Dracula. Universal asserts one-third licensing Dracula, of that amount to the use of should have been allocated Count consistent with the one-third allocation the trial adopted by court for from royalties agreements. multicharacter
However, it is undisputed that two licensed the use agreements of only Count Dracula. All of the from those were royalties agreements thus to awarded Universal’s burden plaintiffs. light plaintiffs’ entitlement all royalties from certain the trial court’s agreements, resolution not was error.
The trial court all also awarded income received between royalty July 1, 1972, $4,500 31, 1972, to October The at issue plaintiffs.45 was apparently derived from character which had oth- multiple agreements, erwise been subjected to one-third The trial court’s apportionment. do
findings set forth the clearly rationale behind different treat- ment Therefore, accorded the royalties received this I during period. would remand this aspect award to the damage trial court. On remand, the trial court would not precluded be a dif- considering ferent if apportionment the income received in this was recorded period in a account separate prevent its discovery by plaintiffs was the product of concluded in licensing agreements violation the interlocu- However, circumstances, tory injunction. absent special royalties received under multicharacter agreements concluded before the entry should interlocutory be divided in accordance with the injunction one-third allocation adopted court.
Universal also the trial court’s conclusion that the statute challenges of limitations did plaintiffs not bar from recovering based on damages Universal’s ABG agreement with Products Inc. The was ex- agreement upheld. (309 case, p. 835].) licensing agreement at U.S. L.Ed. one In this allocated, Further, proposed percent royalty the advance to Count Dracula. proposed defendant percent a 25 The trial allocation certain unidentified income. plaintiffs court awarded percent comparable 33!4 to the award profits, in Sheldon. commencing findings inconsistently period 45The court’s refer to this “after June However, 30, 1972,” 31, July it and “from 1972.” the record makes clear that it 30, 1972, period after which is in issue. June 1964, 1, 1964, to 30, with a term from March January ecuted $500 obligated pay March 1965. The licensee was contract upon agreement. nonrefundable fee the execution on March 1967. expire was extended subsequently for contracts executed recovery prior The trial court found This con barred the statute of limitations. February was date, Universal received tract was executed before that clearly characters, in the use of the horror immediate payment licensing *41 consisted of Dracula. Since Universal’s tortious conduct cluding Count occurred be of Count Dracula and that act licensing Lugosi’s portrayal is that the licensee could inconsequential the it statutory period, yond (Cf. 3, Davies products not sell its until after 1964. begin February to Krasna, 513-514.) remand, I direct 3d at On would pp. Cal. the January trial award of from damages arising the court to delete any However, 30, 1964, remain it is clear that equally contract. plaintiffs to on under extension royalty paid any entitled based damages 3, of that contract after 1964.46 February renewal under Civil The trial court awarded interest plaintiffs prejudgment of from the mid Code 3288 on the entire amount the damages section 1, trial Section 3288 the infringement, gives of the 1969. point January the an action for discretion to award interest prejudgment court “[i]n in An award of of an not from contract....” obligation arising breach is on plaintiff’s damages terest under section 3288 not conditioned is the from which the interest calculated. liquidated been date having 801, (See (1978) 21 3d 814-815 Pac. Nat. Bank Cal. Bullis v. Security Here, 22, the use of some had 109].) 582 P.2d Cal.Rptr. [148 the of prior for a decade infringement entry of the from their profits interest, the case, of this I do not find that the award judgment. (See Amador an abuse of discretion. of the was midpoint infringement, Records, Inc., with regard to its contracts AA similar claims 46Universal’s recovery awarded in connection with Colgate-Palmolive persuasive. Co. The are February contract concluded after to extensions of that AA Records’ contract related ostensibly Colgate-Palmolive executed December contract was 1964. While the 16, 1963, agreement provides them that are February letter between “[w]e licensing of horror entering agreement...” for the certain currently into herewith Moreover, agreement specifies which first February it 6th characters. is the Lugosi’s of Dracula. The December 16th portrayal Dracula character licensed Count Hence, misappropriation was no of likeness specify. so there agreement did not 3d, by the trial court. properly was thus treated February after and the contract until burden, remaining are also I find Universal’s contentions Given Universal’s merit. without Investors v. Livermore Valley City Cal.App.3d 494-495 Cal.Rptr. 749].)
V. Conclusion Judicial recognition protection interest in one’s proprietary name likeness is not an unjustified judiciary into foray legislative domain but the common law’s recognition sensitivity evolution needs and its new adapt societal conditions. ability The trial court found had a in his properly right publicity likeness in his of Count Dracula and that portrayal descended plaintiffs beneficiaries. distinct from publicity The ma- privacy. jority’s effort to squeeze the former into the parameters traditional the latter is ultimately destructive both To accommodate rights. privacy to the realities commercial use of a celebrity’s
identity, the majority hastily provided that was assignable.
Yet, has privacy heretofore been a personal, considered nonassignable right. In characterizing prominent individual’s interest in the commercial uses of identity solely affecting pri- vacy, the majority have failed to confront dual nature of such appropriations. the process, the individual’s interest has been under- valued, and a in the salutary development common law—hailed in other jurisdictions—has been aborted.
I would reverse the and remand judgment the cause to trial court with directions to modify the damage award consistent injunction with the views all expressed herein. In other I would respects, affirm the judgment. J.,
Tobriner, Manuel, J., concurred.