Friday, September 29, 2006

Where's O.J.'s Right of Publicity?

Nong Khai, Thailand

Fred Goldman has asked the Los Angeles Superior Court to transfer to him O.J. Simpson's right of publicity.

On the surface, the Motion seems well taken. The right of publicity, as recognized in California by statute and at common law, is assignable and divisible, like any other property right. See Motion, at 4 (although the drafters could have made this section more authoritative).

Although it may strike some people as strange, a third party can own or control a celebrity's right of publicity; it's a standard business practice. For (hypothetical) example, you turn heads in the tavern with your boss Joshua Radin concert t-shirt, because Radin probably licensed a portion of his right of publicity to a merchandising company which has the exclusive right, for a certain time and in a certain territory, to create t-shirts and other tchochkes featuring the Scrubs balladeer. Radin gets a check, the merchandising company profits from sales, and you get to wear a t-shirt that makes you feel cool but will ultimately get you beaten up. Everybody wins.

If, to continue the hypothetical, Radin failed to pay ten months rent -- because he invested the funds in the box office disappointment Zach Braff Ponders The Universe In Extreme Close-Up -- the landlord would have every right to sue, obtain a judgment, levy on the right of publicity and get into the Joshua Radin concert t-shirt business, up to the value of the judgment. (Most creditors would only levy on the income stream because that's easier, but a creditor usually has the right to seize the underlying income-producing asset.)

So, in my opinion, Fred Goldman's Motion is probably supportable under California law.

It's just not certain that California law applies.

As the Motion glancingly admits on Page 9, Line 8, O.J. Simpson is a resident of Florida, where he has been sheltering in the lee of Florida's asset protection laws for a decade. So the question is: Which state's right of publicity laws apply to O.J., those of Florida (where he resides) or those of California (where, according to the Motion, he allegedly engaged in income-producing activity)?

The law isn't clear. Personal property is usually subject to the law of the state in which the owner lives. "If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile." California Civil Code section 946. Therefore, your comic book collection is governed by the laws of the state in which you live (at least as far as California is concerned).

This rule -- which I'll call "one state, one law" -- has been applied to deceased celebrities. Thus, Princess Diana has no post-mortem publicity rights, because she was a resident of the United Kingdom at the time of her death, and U.K. law does not recognize rights of publicity which continue after death. Cairns v. Franklin Mint, 292 F.3d 1139 (9th Cir. 2002).

The question of which state's law applies to a living celebrity would seem to be answered by an easy extension of the Princess Diana rule. Logically, a celebrity's rights should be governed by the laws of the state (or country) of residence. Except that, as is so often the case in the practice of law, there's a screwy court decision that throws everything off kilter.

In 1999, Abercrombie & Fitch published a clothing catalog which reproduced photographs of famous 1960s surfers without the subjects' permission. Five of the surfers were residents of Hawaii, but our fiftieth state has vague, judge-created right of publicity laws, so the Hawaiian surfers sued in California under California law. The Ninth Circuit, the federal appeals court, said this forum- and law-shopping was ripping, rad and totally cool. Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001).

So, does a celebrity have one right of publicity, governed by the laws of his or her domicile, or does a celebrity have a certain amount of protectible publicity rights in every state or jurisdiction in which the celebrity is known or renders services or is the victim of infringement?

Obviously, the one state-one law approach is far easier to administer and is arguably fairer. You can choose to live in Florida and enjoy no state income tax but a limited right of publicity, or you can choose to live in California and enjoy muscular publicity rights that cost you 9.3% at the highest marginal rate - but you can't do both.

The some-rights-of-publicity-in-every-jurisidiction is not without precedent. Trademark rights can work on that basis. A nationwide retailer could chose to register its mark in all 50 states and all territories, in which case each jurisdiction would protect the mark to a certain degree based upon its trademark laws. (This doesn't usually happen, because large companies register their marks with the federal government, but the point is that each state has the ability to afford a certain amount of specific protection.)

Although Fred Goldman's attorneys wisely avoid the issue -- while ethically disclosing the key fact of O.J.'s Florida residence -- the choice of law question will need to be definitively answered sooner or later. If I were Judge Lefkowitz, I would ask for more briefing on this specific issue, issue a ruling and then let the appellate courts do their job.



Anonymous Ed Saadi said...


You're halfway around the world, on sabbatical, just over malaria in a country which has just experienced a coup d'etat, and what's on your mind is an intricacy of IP law!

Admit it, you "love the law"!

11:59 AM  

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