Right of Publicity Roundup

CHOICE OF DOMICILE

The U.S. District Court for the Western District of Washington decided that 2008 amendments to the Washington Personality Rights Act (WPRA) ' that allowed for application of the right-of-publicity statute “regardless of place of domicile or place of domicile at time of death” of an individual ' violate the due process and full faith and credit clauses of the federal constitution. Experience Hendrix L.L.C. v. HendrixLicensing.com Ltd., C09-285Z.

District Judge Thomas S. Zilly noted: “Not only is Washington's choice-of-law directive at odds with the almost unanimous views of courts that have grappled with the survivability of the right of publicity, it also runs contrary to the traditional approach for resolving the testamentary or intestate disposition of personal property. ' The domicile has the requisite contacts with a particular individual or personality to generate a state interest in defining his or her property rights and how they may be transferred. To select, as the WPRA suggests, the law of a state to which the individual or personality is a stranger, constitutes no less random an act than blindly throwing darts at a map on the wall.” (See, RCW 63.60.010, RCW 63.60.020 and RCW 63.60.030.)

Judge Zilly added: “Once determined under the law of the domicile in effect at the relevant time, the existence or absence of a post-mortem right of publicity is known with respect to all jurisdictions, and an entity seeking to exploit a persona that has passed into the public domain need not engage in any state-specific self-censorship.”

In a case of first impression, the Supreme Court of Oklahoma decided that the discovery rule should be used to determine the timeliness of suits filed under the state's right-of-publicity statute, 12 O.S. 2001 '1449. Woods v. Prestwick House Inc., 108541.

Actor Tyler Woods had agreed to be photographed for the promotion of an American Shakespeare Center (ASC) theater tour. Several years later, in summer 2008, Woods learned that his photo was being used on the cover of a series of Literary Touchstone Classics paperbacks. In May 2009, the Oklahoma-based Woods filed a '1449 suit in Oklahoma County District Court against Virginia-based ASC and Delaware-based book publisher Prestwick House. But the trial court granted summary judgment for the defendants by applying the two-year statute of limitations of 12 O.S. Supp. 2009 '95(3), for actions based on injury to the rights of another.

The Supreme Court of Oklahoma agreed that the two-year statute of limitations applied. But reversing in part, the supreme court found that Woods' complaint clock didn't start ticking until he knew, or by exercising reasonable diligence, should have known of the right-of-publicity injury. The supreme court noted: “Although some courts have refused to apply the discovery rule to unauthorized use of an individual's likeness, those same jurisdictions indicate the rule would be viable in situations where publication was done in an inherently secretive manner.” (In a footnote, the Oklahoma Supreme Court cited Christoff v. Nestle USA Inc., 47 Cal.4th 468 (2009).)

The Oklahoma Supreme Court added: “The publishers initially released approximately eleven thousand (11,000) books, but only seventy-seven (77) were destined for Oklahoma consumers. Even if Woods had some duty to randomly search publications for the misappropriation of his photograph, it is doubtful he would have been able to find the publishers' book as he was not given credit or identified in the publication.” The court remanded the case, noting: “Fact questions exist as to whether Woods was diligent discovering the misappropriation of his photograph, precluding summary judgment. ' [T]he trier of fact must still determine when the plaintiff knew or should have known of the injury.”

The California Court of Appeal, Second District, denied a special motion to strike a suit that rock band No Doubt filed against videogame publisher Activision over changes consumers could make to the band members' likenesses in the videogame Band Hero. No Doubt v. Activision Publishing Inc., B223996.

No Doubt entered into an agreement that gave the band approval over Activision's use of the individual members' likenesses in Band Hero. But Activision designed Band Hero beyond that, so that players would be able to make No Doubt avatars: perform solo or with other Band Hero groups; perform any song in Band Hero; and have No Doubt leader singer Gwen Stefani sing in a male voice and the male No Doubt members sing in female voices.

No Doubt sued in Los Angeles Superior Court alleging right-of-publicity violations, among other things. Activision subsequently responded with a motion to strike the complaint under Calif. Civ. Proc. '425.16 (known as the anti-SLAPP statute). Section 425 permits courts to dismiss suits that are brought to chill defendants' exercises of free speech rights in matters of public interest. The videogame maker argued that its extra-contractual depictions of No Doubt were transformative uses subject to First Amendment protection. But the superior court denied the motion to strike.

The California Court of Appeal did agree with Activision that videogames are expressive works subject to First Amendment protection. The court of appeal also noted that: “Activision's use of No Doubt's likenesses in Band Hero is a matter of public interest because of the widespread fame No Doubt has achieved.”

But nevertheless affirming the superior court, the court of appeal emphasized: “That the avatars can be manipulated ' does not transform the avatars into anything other than exact depictions of No Doubt's members. ' [N]othing in the creative elements of the Band Hero elevates the depictions of No Doubt to something more than 'conventional, more or less fungible, images' of its members that No Doubt should have the right to control and exploit.”

CHOICE OF DOMICILE

The U.S. District Court for the Western District of Washington decided that 2008 amendments to the Washington Personality Rights Act (WPRA) ' that allowed for application of the right-of-publicity statute “regardless of place of domicile or place of domicile at time of death” of an individual ' violate the due process and full faith and credit clauses of the federal constitution. Experience Hendrix L.L.C. v. HendrixLicensing.com Ltd., C09-285Z.

District Judge Thomas S. Zilly noted: “Not only is Washington's choice-of-law directive at odds with the almost unanimous views of courts that have grappled with the survivability of the right of publicity, it also runs contrary to the traditional approach for resolving the testamentary or intestate disposition of personal property. ' The domicile has the requisite contacts with a particular individual or personality to generate a state interest in defining his or her property rights and how they may be transferred. To select, as the WPRA suggests, the law of a state to which the individual or personality is a stranger, constitutes no less random an act than blindly throwing darts at a map on the wall.” (See, RCW 63.60.010, RCW 63.60.020 and RCW 63.60.030.)

Judge Zilly added: “Once determined under the law of the domicile in effect at the relevant time, the existence or absence of a post-mortem right of publicity is known with respect to all jurisdictions, and an entity seeking to exploit a persona that has passed into the public domain need not engage in any state-specific self-censorship.”

In a case of first impression, the Supreme Court of Oklahoma decided that the discovery rule should be used to determine the timeliness of suits filed under the state's right-of-publicity statute, 12 O.S. 2001 '1449. Woods v. Prestwick House Inc., 108541.

Actor Tyler Woods had agreed to be photographed for the promotion of an American Shakespeare Center (ASC) theater tour. Several years later, in summer 2008, Woods learned that his photo was being used on the cover of a series of Literary Touchstone Classics paperbacks. In May 2009, the Oklahoma-based Woods filed a '1449 suit in Oklahoma County District Court against Virginia-based ASC and Delaware-based book publisher Prestwick House. But the trial court granted summary judgment for the defendants by applying the two-year statute of limitations of 12 O.S. Supp. 2009 '95(3), for actions based on injury to the rights of another.

The Supreme Court of Oklahoma agreed that the two-year statute of limitations applied. But reversing in part, the supreme court found that Woods' complaint clock didn't start ticking until he knew, or by exercising reasonable diligence, should have known of the right-of-publicity injury. The supreme court noted: “Although some courts have refused to apply the discovery rule to unauthorized use of an individual's likeness, those same jurisdictions indicate the rule would be viable in situations where publication was done in an inherently secretive manner.” (In a footnote, the Oklahoma Supreme Court cited Christoff v. Nestle USA Inc. , 47 Cal.4th 468 (2009).)

The Oklahoma Supreme Court added: “The publishers initially released approximately eleven thousand (11,000) books, but only seventy-seven (77) were destined for Oklahoma consumers. Even if Woods had some duty to randomly search publications for the misappropriation of his photograph, it is doubtful he would have been able to find the publishers' book as he was not given credit or identified in the publication.” The court remanded the case, noting: “Fact questions exist as to whether Woods was diligent discovering the misappropriation of his photograph, precluding summary judgment. ' [T]he trier of fact must still determine when the plaintiff knew or should have known of the injury.”

The California Court of Appeal, Second District, denied a special motion to strike a suit that rock band No Doubt filed against videogame publisher Activision over changes consumers could make to the band members' likenesses in the videogame Band Hero. No Doubt v. Activision Publishing Inc., B223996.

No Doubt entered into an agreement that gave the band approval over Activision's use of the individual members' likenesses in Band Hero. But Activision designed Band Hero beyond that, so that players would be able to make No Doubt avatars: perform solo or with other Band Hero groups; perform any song in Band Hero; and have No Doubt leader singer Gwen Stefani sing in a male voice and the male No Doubt members sing in female voices.

No Doubt sued in Los Angeles Superior Court alleging right-of-publicity violations, among other things. Activision subsequently responded with a motion to strike the complaint under Calif. Civ. Proc. '425.16 (known as the anti-SLAPP statute). Section 425 permits courts to dismiss suits that are brought to chill defendants' exercises of free speech rights in matters of public interest. The videogame maker argued that its extra-contractual depictions of No Doubt were transformative uses subject to First Amendment protection. But the superior court denied the motion to strike.

The California Court of Appeal did agree with Activision that videogames are expressive works subject to First Amendment protection. The court of appeal also noted that: “Activision's use of No Doubt's likenesses in Band Hero is a matter of public interest because of the widespread fame No Doubt has achieved.”

But nevertheless affirming the superior court, the court of appeal emphasized: “That the avatars can be manipulated ' does not transform the avatars into anything other than exact depictions of No Doubt's members. ' [N]othing in the creative elements of the Band Hero elevates the depictions of No Doubt to something more than 'conventional, more or less fungible, images' of its members that No Doubt should have the right to control and exploit.”