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Is a Retroactive Publicity Right Constitutional?

By Alan J. Hartnick
February 26, 2009

Was Marilyn Monroe domiciled in New York and not California when she died in 1962? If it was California, the company succeeding to her rights might have publicity rights after her death, if that state's statute extending publicity rights back from when the statute originally took effect was constitutional. The new California statute is retroactive as well as prospective. Monroe, of course, never heard of publicity rights, which were enacted in California in 1984.

If it was New York, there are no publicity rights, only privacy rights, which ended with her death. Although publicity bills have been introduced in New York (Amend Senate Bill No. 6005, June 18, 2008, 13534-05-8) none has passed ' so far. New York legislators must consider, if there is such a publicity law, whether retroactive rights are constitutional.

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