The MARTIN LUTHER KING, JR., CENTER FOR SOCIAL CHANGE, INC.;
Mrs. Coretta Scott King, Administratrix of the Estate of
Dr. Martin Luther King, Jr., Deceased; and Motown Record
Corporation, Plaintiffs-Appellants,
v.
AMERICAN HERITAGE PRODUCTS, INC.; B & S Sales, Inc., a/k/a
B & S Sales; and James E. Bolen and James F.
Bolen, Defendants-Appellees.
No. 81-7264.
United States Court of Appeals,
Eleventh Circuit.
Jan. 3, 1983.
Ruppert, Bronson & Chciarelli, James D. Ruppert, Franklin, Ohio, for defendants-appellees.
Harmon, Smith & Bridges, Archer D. Smith, III, Atlanta, Ga., for plaintiffs-appellants.
Appeal from the United States District Court for the Northern District of Georgia.
Before HENDERSON and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.
PER CURIAM:
In our previous consideration of this case, The Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., No. 81-7264 (11th Cir., Apr. 1, 1982), we certified the following questions to the Supreme Court of Georgia pursuant to Georgia Code Annotated Sec. 24-3902 permitting such procedure:
(1) Is the "right to publicity" recognized in Georgia as a right distinct from the right to privacy?
(2) If the answer to question (1) is affirmative, does the "right to publicity" survive the death of its owner? Specifically, is the right inheritable and devisable?
(3) If the answer to question (2) is also affirmative, must the owner have commercially exploited the right before it can survive his death?
(4) Assuming affirmative answers to questions (1), (2) and (3), what is the guideline to be followed in defining commercial exploitation and what are the evidentiary prerequisites to a showing of commercial exploitation?
The Supreme Court of Georgia, The Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., --- Ga. ---,
Pursuant to this opinion, the opinion of the Supreme Court of Georgia, and that court's answers to the first three certified questions, we reverse the judgment of the district court and remand for further proceedings.
REVERSED and REMANDED.
Exhibit A
In the Supreme Court of Georgia
Decided: Oct. 28, 1982
The MARTIN LUTHER KING, JR., CENTER FOR SOCIAL CHANGE, INC., et al. v. AMERICAN HERITAGE PRODUCTS, INC., et al.
HILL, Presiding Justice.
These are certified questions regarding the "right of publicity". The certification comes from the United States Court of Appeals for the Eleventh Circuit. Code Ann. Sec. 24-3902; see Miree v. United States of America,
The plaintiffs are the Martin Luther King, Jr. Center for Social Change (the Center),2 Coretta Scott King, as administratrix of Dr. King's estate, and Motown Record Corporation, the assignee of the rights to several of Dr. King's copyrighted speeches. Defendant James F. Bolen is the sole proprietor of a business known as B & S Sales, which manufactures and sells various plastic products as funeral accessories. Defendant James E. Bolen, the son of James F. Bolen, developed the concept of marketing a plastic bust of Dr. Martin Luther King, Jr., and formed a company, B & S Enterprises, to sell the busts, which would be manufactured by B & S Sales. B & S Enterprises was later incorporated under the name of American Heritage Products, Inc.
Although Bolen sought the endorsement and participation of the Martin Luther King, Jr. Center for Social Change, Inc., in the marketing of the bust, the Center refused Bolen's offer. Bolen pursued the idea, nevertheless, hiring an artist to prepare a mold and an agent to handle the promotion of the product. Defendant took out two half-page advertisements in the November and December 1980 issues of Ebony magazine, which purported to offer the bust as "an exclusive memorial" and "an opportunity to support the Martin Luther King, Jr., Center for Social Change." The advertisement stated that "a contribution from your order goes to the King Center for Social Change." Out of the $29.95 purchase price, defendant Bolen testified he set aside 3% or $.90, as a contribution to the Center. The advertisement also offered "free" with the purchase of the bust a booklet about the life of Dr. King entitled "A Tribute to Dr. Martin Luther King, Jr."
In addition to the two advertisements in Ebony, defendant published a brochure or pamphlet which was inserted in 80,000 copies of newspapers across the country. The brochure reiterated what was stated in the magazine advertisements, and also contained photographs of Dr. King and excerpts from his copyrighted speeches. The brochure promised that each "memorial" (bust) is accompanied by a Certificate of Appreciation "testifying that a contribution has been made to the Martin Luther King, Jr., Center for Social Change."
Defendant James E. Bolen testified that he created a trust fund for that portion of the earnings which was to be contributed to the Center. The trust fund agreement, however, was never executed, and James E. Bolen testified that this was due to the plaintiffs' attorneys' request to cease and desist from all activities in issue. Testimony in the district court disclosed that money had been tendered to the Center, but was not accepted by its governing board. Also, the district court found that, as of the date of the preliminary injunction, the defendants had sold approximately 200 busts and had outstanding orders for 23 more.
On November 21, 1980, and December 19, 1980, the plaintiffs demanded that the Bolens cease and desist from further advertisements and sales of the bust, and on December 31, 1980, the plaintiffs filed a complaint in the United States District Court for the Northern District of Georgia. The district court held a hearing on the plaintiffs' motion for a preliminary injunction and the defendants' motion to dismiss the complaint. The motion to dismiss was denied and the motion for a preliminary injunction was granted in part and denied in part. The motion for an injunction sought (1) an end to the use of the Center's name in advertising and marketing the busts, (2) restraint of any further copyright infringement and (3) an end to the manufacture and sale of the plastic busts. The defendants agreed to discontinue the use of the Center's name in further promotion. Therefore, the court granted this part of the injunction. The district court found that the defendants had infringed the King copyrights and enjoined all further use of the copyrighted material.
In ruling on the third request for injunction, the court confronted the plaintiffs' claim that the manufacture and sale of the busts violated Dr. King's right of publicity which had passed to his heirs upon Dr. King's death. The defendants contended that no such right existed, and hence, an injunction should not issue. The district court concluded that it was not necessary to determine whether the "right of publicity" was devisable in Georgia because Dr. King did not commercially exploit this right during his lifetime. As found by the district court, the evidence of exploitation by Dr. King came from his sister's affidavit which stated that he had received "thousands of dollars in the form of honorariums from the use of his name, likeness, literary compositions, and speeches." The district court further found that "Dr. King apparently sold his copyrights in several speeches to Motown Records Corporation." Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc.,
On plaintiffs' appeal of the partial denial of the preliminary injunction, the Eleventh Circuit Court of Appeals has certified the following questions:
(1) Is the "right of publicity" recognized in Georgia as a right distinct from the right of privacy?
(2) If the answer to question (1) is affirmative, does the "right to publicity" survive the death of its owner? Specifically, is the right inheritable and devisable?
(3) If the answer to question (2) is also affirmative, must the owner have commercially exploited the right before it can survive his death?
(4) Assuming the affirmative answers to questions (1), (2) and (3), what is the guideline to be followed in defining commercial exploitation and what are the evidentiary prerequisites to a showing of commercial exploitation?
As noted by the Eleventh Circuit, this case raises questions concerning the laws of Georgia as to which there are no controlling precedents directly on point. In addition to being novel in this jurisdiction, the questions are legally alluring. Under these twin circumstances, it is necessary in the first instance to consider how the answers to the questions apply to other fact situations, and tempting in the second instance to include those considerations in writing. Hopefully having considered the various ramifications, we will resist to the extent possible the temptation to answer more than has been asked.
The right of publicity may be defined as a celebrity's right to the exclusive use of his or her name and likeness. Price v. Hal Roach Studios, Inc.,
1. Is the "right of publicity" recognized in Georgia as a right distinct from the right of privacy?
Georgia has long recognized the right of privacy. Following denial of the existence of the right of privacy in a controversial decision by the New York Court of Appeals in Roberson v. Rochester Folding-Box Co.,
In Pavesich v. New England Life Ins. Co., supra, the picture of an artist was used without his consent in a newspaper advertisement of the insurance company. Analyzing the right of privacy, this court held: "The publication of a picture of a person, without his consent, as a part of an advertisement, for the purpose of exploiting the publisher's business, is a violation of the right of privacy of the person whose picture is reproduced, and entitles him to recover without proof of special damage."
In the course of its opinion the Pavesich court said several things pertinent here. It noted that the commentators on ancient law recognized the right of personal liberty, including the right to exhibit oneself before the public at proper times and places and in a proper manner. As a corollary, the court recognized that the right of personal liberty included the right of a person not to be exhibited before the public, saying: "The right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law is also embraced within the right of personal liberty. Publicity in one instance and privacy in the other is each guaranteed. If personal liberty embraces the right of publicity, it no less embraces the correlative right of privacy; and this is no new idea in Georgia law."
Recognizing the possibility of a conflict between the right of privacy and the freedoms of speech and press, this court said: "There is in the publication of one's picture for advertising purposes not the slightest semblance of an expression of an idea, a thought, or an opinion, within the meaning of the constitutional provision which guarantees to a person the right to publish his sentiments on any subject."
Observing in dicta that the right of privacy in general does not survive the death of the person whose privacy is invaded, the Pavesich court said: "While the right of privacy is personal, and may die with the person, we do not desire to be understood as assenting to the proposition that the relatives of the deceased can not, in a proper case, protect the memory of their kinsman, not only from defamation, but also from an invasion into the affairs of his private life after his death. This question is not now involved, but we do not wish anything said to be understood as committing us in any way to the doctrine that against the consent of relatives the private affairs of a deceased person may be published and his picture or statue exhibited."
Finding that Pavesich, although an artist, was not recognized as a public figure, the court said: "It is not necessary in this case to hold, nor are we prepared to do so, that the mere fact that a man has become what is called a public character, either by aspiring to public office, or by holding public office, or by exercising a profession which places him before the public, or by engaging in a business which has necessarily a public nature, gives to every one the right to print and circulate his picture."
The "right of publicity" was first recognized in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.,
"This right might be called a 'right of publicity.' For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures."
In Palmer v. Schonhorn Enterprises, Inc.,
"The names of plaintiffs have become internationally famous, undoubtedly by reason of talent as well as hard work in perfecting it. This is probably true in the cases of most so-called celebrities, who have attained national or international recognition in a particular field of art, science, business or other extraordinary ability. They may not all desire to capitalize upon their names in the commercial field, beyond or apart from that in which they have reached their known excellence. However, because they presently do not should not be justification for others to do so because of the void. They may desire to do it later.... It is unfair that one should be permitted to commercialize or exploit or capitalize upon another's name, reputation or accomplishments merely because the owner's accomplishments have been highly publicized."
In Haelan Laboratories, supra, the court was concerned with whether a celebrity has the right to the exclusive use of his or her name and likeness. In Palmer, supra, the court was concerned with whether a person using the celebrity's name for the user's commercial benefit has the right to do so without authorization. At this point it should be emphasized that we deal here with the unauthorized use of a person's name and likeness for the commercial benefit of the user, not with a city's use of a celebrity's name to denominate a street or school.
The right to publicity is not absolute. In Hicks v. Casablanca Records,
The right of publicity was first recognized in Georgia by the Court of Appeals in Cabaniss v. Hipsley,
In McQueen v. Wilson,
Thus, the courts in Georgia have recognized the rights of private citizens, Pavesich, supra, as well as entertainers, Cabaniss and McQueen, supra, not to have their names and photographs used for the financial gain of the user without their consent, where such use is not authorized as an exercise of freedom of the press. We know of no reason why a public figure prominent in religion and civil rights should be entitled to less protection than an exotic dancer or a movie actress. Therefore, we hold that the appropriation of another's name and likeness, whether such likeness be a photograph or sculpture, without consent and for the financial gain of the appropriator is a tort in Georgia, whether the person whose name and likeness is used is a private citizen, entertainer, or as here a public figure who is not a public official.
In Pavesich, supra,
2. Does the "right of publicity" survive the death of its owner (i.e., is the right inheritable and devisable)?
Although the Pavesich court expressly did not decide this question, the tenor of that opinion is that the right to privacy at least should be protectable after death. Pavesich, supra,
The right of publicity is assignable during the life of the celebrity, for without this characteristic, full commercial exploitation of one's name and likeness is practically impossible. Haelan Laboratories v. Topps Chewing Gum, supra,
The courts that have considered the problem are not as unanimous. In Price v. Hal Roach Studios, Inc., supra,
In Factors Etc., Inc. v. Pro Arts, Inc.,
In Lugosi v. Universal Pictures,
In Memphis Development Foundation v. Factors Etc., Inc.,
In Estate of Presley v. Russen, supra,
For the reasons which follow we hold that the right of publicity survives the death of its owner and is inheritable and devisable. Recognition of the right of publicity rewards and thereby encourages effort and creativity. If the right of publicity dies with the celebrity, the economic value of the right of publicity during life would be diminished because the celebrity's untimely death would seriously impair, if not destroy, the value of the right of continued commercial use. Conversely, those who would profit from the fame of a celebrity after his or her death for their own benefit and without authorization have failed to establish their claim that they should be the beneficiaries of the celebrity's death. Finally, the trend since the early common law has been to recognize survivability, notwithstanding the legal problems which may thereby arise. We therefore answer question 2 in the affirmative.
3. Must the owner of the right of publicity have commercially exploited that right before it can survive?
Exploitation is understood to mean commercial use by the celebrity other than the activity which made him or her famous, e.g., an inter vivos transfer of the right to the use of one's name and likeness.
The requirement that the right of publicity be exploited by the celebrity during his or her lifetime in order to render the right inheritable arises from the case involving Agatha Christie, Hicks v. Casablanca Records, supra,
Nevertheless, the Hicks dicta has been relied upon. See Groucho Marx Productions, Inc. v. Day & Night Co.,
The cases which have considered this issue, see above, involved entertainers. The net result of following them would be to say that celebrities and public figures have the right of publicity during their lifetimes (as others have the right of privacy), but only those who contract for bubble gum cards, posters and tee shirts have a descendible right of publicity upon their deaths. See Groucho Marx Productions, Inc. v. Day & Night Co., supra,
Perhaps this case more than others brings the point into focus. A well known minister may avoid exploiting his prominence during life because to do otherwise would impair his ministry. Should his election not to take commercial advantage of his position during life ipso facto result in permitting others to exploit his name and likeness after his death? In our view, a person who avoids exploitation during life is entitled to have his image protected against exploitation after death just as much if not more than a person who exploited his image during life.6
Without doubt, Dr. King could have exploited his name and likeness during his lifetime. That this opportunity was not appealing to him does not mean that others have the right to use his name and likeness in ways he himself chose not to do. Nor does it strip his family and estate of the right to control, preserve and extend his status and memory and to prevent unauthorized exploitation thereof by others. Here, they seek to prevent the exploitation of his likeness in a manner they consider unflattering and unfitting. We cannot deny them this right merely because Dr. King chose not to exploit or commercialize himself during his lifetime.
Question 3 is answered in the negative, and therefore we need not answer question 4.
Certified questions 1 and 2 answered in the affirmative, question 3 answered in the negative, and question 4 not answered.
All the Justices concur, except WELTNER, J., who concurs specially.
38748. THE MARTIN LUTHER KING, JR. CENTER FOR SOCIAL CHANGE, INC., et al. v. AMERICAN HERITAGE PRODUCTS, INC., et al.
WELTNER, Justice, concurring specially.
I concur specially because, although this matter is one of certified questions, I believe that the complaint states a claim upon which relief can be granted. I disagree most decidedly with the substantive portion of the majority opinion, for reason that it generates more unsettling questions than it resolves.
In this opinion, we have taken the "right of privacy" as enumerated in Pavesich, supra, and added thereto a new thing, now called a "right of publicity." That seems to me to be more an exercise in verbal juxtaposition than a careful examination of legal issues and practical results.
At heart, the whole body of tort law is but an expression of what the community perceives to be the civil, as opposed to moral or ethical, responsibility of its members to each other. That concept changes with the cumulative experiences and assessments of succeeding generations, through constitutional, legislative, and judicial pronouncement. And well it should, for, in Thomas Jefferson's words, "Laws and institutions must go hand in hand with the progress of the human mind."
Pavesich, as example, found that it was contrary to good conscience (the conscience, that is, of the community as delineated and declared by this Court) that New England Life Insurance Company, for financial gain, might expropriate an aspect of the personality of Paolo Pavesich by the unauthorized publication of his photograph. That conduct did not meet community standards, as assayed by our Court in the year 1905. Because a remedy must need be provided, we became the first high court in the Republic to "discover" a new right--the right to privacy.
Justice Cobb wrote, at the outset: "The novelty of the complaint is no objection when an injury cognizable by law is shown to have been inflicted on the plaintiff.... This results from the application of the maxim ubi jus ibi remedium, which finds expression in our code, where it declared that 'For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other.' Civil Code Sec. 4929."
This maxim appears at the second page of his noted opinion. Twenty-four pages later, in concluding an exhaustive and learned examination, he wrote: "The conclusion reached by us seems to be so thoroughly in accord with natural justice, with the principles of the law of every civilized nation, and especially with the elastic principles of the common law, and so thoroughly in harmony with those principles as molded under the influence of American institutions, that it seems strange to us that not only four of the judges of one of the most distinguished and learned courts of the Union, but also lawyers of learning and ability, have found an insurmountable stumbling block in the path that leads to a recognition of a right which would give to persons like the plaintiff in this case, ... redress for the legal wrong, or, what is by some of the law-writers called, the outrage perpetrated by the unauthorized use of their pictures for advertising purposes." (Emphasis added)
Thus it is shown that, while our learned forefather on this Court embraces as the foundation of his opinion the maxim ubi jus ibi remedium, jus comes into being through a necessity for remedium. He has applied therefore, what is in reality the converse of his professed authority--a rule of ubi remedium ibi jus!
Our ancient maxim--"for every right a remedy"--is, in truth, stated hind part before. The reality of the judicial process is this: wherever there ought to be a remedy, the Court will declare a corresponding right.
Pavesich demonstrates this process beyond cavil. Our Court therefore found, as to Pavesich, that the company's conduct was unconscionable; that for it he should have his remedy; that because there must be a remedy, there must also be, in the interest of logical tidiness and Hofeldian system, a corresponding right. We named that right, necessarily induced by the determination to provide a remedy, the "right of privacy," just as Adam named the animals in the Garden. (That Pavesich is perhaps the most noted product of our Court in terms of nationally recognized precedent proves, again, the generative force which lies in the power to bestow the name).
There can be little difficulty in approaching this case in precisely the same manner. I believe we would correctly assess community concepts of responsibility in declaring that the complaint alleges conduct on the part of the defendants which, if true, would be, simply put, unconscionable. Conduct which is unconscionable under all the facts and circumstances of a given case is conduct which demands remedy. Thus we are saved the rigors and toils and perils of creating some new "right" and then declaring that it, like some Cardiff Giant, has been there all the while, waiting to be unearthed.
I would, therefore, answer the questions of the United States Court of Appeals in this manner: "The complaint in this case states a claim upon which relief can be granted." The authority for this response is no new "right," but this ancient remedy: "An action for money had and received lies in all cases where another has received money which the plaintiff, ex aequo et bono, is entitled to recover and which the defendant is not entitled in good conscience to retain." Fain v. Neal,
Why, then, this exercise?
Because in proclaiming this new "right of publicity," we have created an open-ended and ill-defined force which jeopardizes a right of unquestioned authenticity--free speech. It should be noted that our own constitutional provision, Art. I, Sec. I, Par. IV, Constitution of Georgia (Code Ann. Sec. 2-104), traces its lineage to the first Constitution of our State, in 1777, antedating the First Amendment by fourteen years. Its language is plain and all-encompassing: "No law shall ever be passed to curtail, or restrain the liberty of speech, or of the press; any person may speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that liberty." Its authority is firmly established. Georgia Gazette Publishing Co. v. Ramsey,
But the majority says that the fabrication and commercial distribution of a likeness of Dr. King is not "speech," thereby removing the inquiry from the ambit of First Amendment or Free Speech inquiries. 250 Ga. at ---,
To this conclusion I most vigorously dissent. When our Constitution declares that anyone may "speak, write and publish his sentiments, on all subjects" it does not confine that freedom exclusively to verbal expression. Human intercourse is such that ofttimes the most powerful of expressions involve no words at all, e.g., Jesus before Pilate; Thoreau in the Concord jail; King on the bridge at Selma.
Do not the statues of the Confederate soldiers which inhabit so many of our courthouse squares express the sentiments of those who raised them?
Are not the busts of former chief justices, stationed within the rotunda of this very courthouse, expressions of sentiments of gratitude and approval?
Is not the portrait of Dr. King which hangs in our Capitol an expression of sentiment?
Manifestly so.
If, then, a two-dimensional likeness in oil and canvas is an expression of sentiment, how can it be said that a three-dimensional likeness in plastic is not?
But, says the majority, our new right to publicity is violated only in cases involving financial gain. 250 Ga. at ---,
Did the sculptors of our Confederate soldiers, and of our chief justices, labor without gain? Was Dr. King's portraitist unpaid for his work?
If "financial gain" is to be the watershed of violation vel non of this new-found right, it cannot withstand scrutiny. It is rare, indeed, that any expression of sentiment beyond casual conversation is not somehow connected, directly or indirectly, to "financial gain." For example, a school child wins a $25 prize for the best essay on Dr. King's life. Is this "financial gain?" Must the child then account for the winnings?
The essay, because of its worth, is reprinted in a commercial publication. Must the publisher account?
The publication is sold on the newsstand. Must the vendor account?The majority will say "free speech." Very well. The same child wins a $25 prize in the school art fair. His creation--a bust of Dr. King.
Must he account?
The local newspaper prints a photograph of the child and of his creation. Must it account?
The school commissions replicas of the bust to raise money for its library. Must it account?
UNICEF reproduces the bust on its Christmas cards. Must it account?
Finally, a purely commercial venture undertakes to market replicas of the bust under circumstances similar to those of this case. Must it account?
Obviously, the answers to the above questions will vary, and properly so, because the circumstances posited are vastly different. The dividing line, however, cannot be fixed upon the presence or absence of "financial gain." Rather, it must be grounded in the community's judgment of what, ex aequo et bono, is unconscionable.
Were it otherwise, this "right of publicity," fully extended, would eliminate scholarly research, historical analysis, and public comment, because food and shelter, and the financial gain it takes to provide them, are still essentials of human existence.
Were it otherwise, no newspaper might identify any person or any incident of his life without accounting to him for violation of his "right to publicity."
Were it otherwise, no author might refer to any event in history wherein his reference is identifiable to any individual (or his heirs!) without accounting for his royalties.
* * *
A careful analysis of the right of free speech yields conclusions not inconsistent with the above. All speech is not "free," in the sense of being immune from all consequence.
Over the years our law has imposed and sustained restraints--criminal, equitable, and remedial--upon forms of speech which inter alia include: treason, pornography, inciting to riot, fighting words, defamation, criminal conspiracy and criminal solicitation, false official statements, and perjury.
It is undeniable that the acts controlled by these sanctions can be that of "speaking, writing, or publishing of sentiments." Yet, we have little difficulty in excluding proper cases from the privileged realm of "free speech" because in each such instance the calculable evil of its license plainly outweighs the potential evil of its prohibition.
As example, the community deems it "better" (and the courts so declare it) that treason be controlled than that an untrammeled free speech should give license to treasonable conduct.
Each lawful restraint finds its legitimacy, then, not because it is laid against some immutable rule (like the weights and measures of the Bureau of Standards) but because it is perceived that it would be irresponsible to the interest of the community--to the extent of being unconscionable--that such conduct go unrestrained.
The doctrine of unjust enrichment finds its genesis in such a reckoning. It can be applied to just such a matter as that before us. Were we to do so, we could avoid entering the quagmire of combining considerations of "right of privacy," "right of publicity," and considerations of inter vivos exploitation. We would also retain our Constitutional right of free speech uncluttered and uncompromised by these new impediments of indeterminate application.
And we could sanction relief in this case--where relief is plainly appropriate.
SUPREME COURT OF THE STATE OF GEORGIA
CLERK'S OFFICE, ATLANTA
October 28, 1982
I hereby certify that the foregoing pages hereto attached contain a true and complete copy of the opinion of the Supreme Court of Georgia in the case therein stated, as appears from the original of file in this office.Witness my signature and the seal of the said Court hereto affixed the day and year above written.
/s/ Hazel E. Hallford, Deputy Clerk
Notes
Having answered question (3) negatively, the court declined to answer question (4)
The statement of facts is taken almost verbatim from the Court of Appeals' certification. For convenience, the parties will be identified as they appeared in the district court
The Center is a non-profit corporation which seeks to promote the ideals of Dr. King
Following Pavesich, supra, this court has continued to recognize the right of privacy. In Bazemore v. Savannah Hospital,
On the other hand, in Waters v. Fleetwood,
The Second Circuit has now accepted the Sixth Circuit's interpretation of Tennessee law. Factors Etc., Inc. v. Pro Arts, Inc.,
On appeal of this case, the Second Circuit reversed, finding the law of California applicable, where, as noted above, the right of publicity is not inheritable. Groucho Marx Productions, Inc. v. Day & Night Co.,
Although the conclusion reached in answer to question 2 was based in part upon commercial considerations, and our answer to question 3 is based upon the absence of exploitation, the reasoning supporting the answer to question 3 also supports the answer to question 2