Post-mortem publicity rights phoenix rising

The 9th U.S. Circuit Court of Appeals has just delivered at least a limited new year's present to those holding the post-mortem publicity rights of deceased celebrities. The appellate court reversed a 2011 federal district court decision which found the all-purpose-forum provision of Washington state's Publicity Rights Act (WPRA) to be unconstitutional under the U.S. Constitution's due process, full faith and credit, and dormant commerce clauses. See Experience Hendrix LLC v. Hendrixlicensing.com Ltd., 2014 DJDAR 1162 (Jan. 29, 2014). This means that the representatives of famous persons who died while living in jurisdictions that did not recognize a survivable right of publicity may now sue to enforce those rights in the state of Washington.

The WPRA was amended in 2008 to grant publicity rights protection to "all individuals and personalities, living and deceased, regardless of place of domicile or place of domicile at time of death." This amendment was significant because most U.S. jurisdictions hold that the existence of a post-mortem publicity right is determined by the law of the state in which the decedent was domiciled at the time of his or her death. And since only 19 states today recognize such a post-mortem publicity right either at common law or by statute, the heirs/successors of those who died domiciled in states such as New York have had no ability to prevent the exploitation of their personas. (In 1999, then-state Sen. John Burton's Senate Bill 209 attempted to amend California's post-mortem publicity rights statute to include a provision which would have similarly allowed publicity rights litigation to be brought "whether or not the plaintiff is a domiciliary of this state." However, that language was later deleted from the proposed amendment and the bill was signed into law without that provision.)

Thus, for example, those who hold the publicity rights of Marilyn Monroe, John Lennon, Arthur Ashe, Judy Garland and Jimi Hendrix (all of whom are, or have been judicially determined to be, New Yorkers at the time of their deaths) have been stymied in their attempts to control the use of these celebrities' names and likenesses on or in commercial products, goods, services and advertising.

The hopes of these decedents' representatives that the amended WPRA would allow post-mortem publicity rights litigation to be brought in Washington "regardless of place of domicile or place of domicile at time of death" were initially dashed by U.S. District Judge Thomas Zilly's lengthy opinion holding that portion of WPRA to be unconstitutional under the due process, full faith and credit, and dormant commerce clauses of the U.S. Constitution. Experience Hendrix LLC v. Hendrixlicensing.com Ltd., 766 F.Supp.2d 1122, 1134-44 (W.D. Wash. 2011).

However, the 9th Circuit's unanimous and summary reversal of the district court's decision breathes new life into the corpses of those celebrities who died while domiciled in jurisdictions that did not recognize a survivable publicity right. These decedents' representatives now have the ability to bring lawsuits in Washington state seeking to enforce their post-mortem publicity rights.

The appellate court's Experience Hendrix decision, however, is not unalloyed good news since the majority opinion of Judge David Ebel expressly acknowledges that "Washington's approach to post-mortem personality rights raises difficult questions regarding whether another state must recognize the broad personality rights that Washington provides. But we need not resolve that issue." Specifically, in holding that the WPRA does not violate the dormant commerce clause - "which limits the power of states to enact laws imposing substantial burdens on interstate commerce" - the 9th Circuit concluded that "the limited, non-speculative controversy at issue here, does not affect transactions occurring wholly outside Washington.... Nor does the record suggest that the application of the WPRA ... would otherwise impermissibly burden interstate commerce."

Therefore, if a future non-domiciliary plaintiff were to bring a post-mortem publicity rights lawsuit in the state of Washington, it is not clear from the Experience Hendrix decision that damages could be recovered, or injunctive relief obtained, for infringing transactions occurring entirely outside of that state. Future litigation will certainly help define the parameters of the WPRA's constitutionality and applicability beyond the Hendrix parties' "limited, non-speculative controversy" - including the important question of whether and which transactions occurring partially within Washington state are actionable under this statute.