• The Hollywood Reporter on LinkedIn
  • Follow THR on Pinterest

Publicity Rights Of Dead Celebrities Under Constitutional Microscope

The ghosts of dead celebrities will haunt a Washington courtroom today.

A federal judge will consider at a hearing this afternoon the constitutionality of a state law that grants dead celebrities generous protections against the exploitation of their names, images and likenesses.

The case involves the estate of Jimi Hendrix battling against a vendor who sold t-shirts, posters, lights, dartboards, key chains and other items designed to capitalize on the fame of the rock legend. The lawsuit started out as a battle on trademark grounds, but after Washington followed the lead of other states and amended its statutes in 2008 so that dead celebrities could enjoy publicity rights too, the defendant asked for a court order that declared that Hendrix' publicity rights weren't applicable to the dispute.

U.S. District Judge Thomas Zilly has asked both sides to debate the constitutionality of the new state law.

In the past few years, publicity rights has exploded as a legal claim with seemingly larger tentacles than other forms of intellectual property. Plaintiffs have asserted claims over uses of their names, voices, signatures, photographs, images, likenesses, gestures, mannerisms, etc. The topic has been explored once in 1977 by the U.S. Supreme Court in Zacchini v. Scripps-Howard Broadcasting Co., featuring a man named Hugo Zacchini who performed a human cannonball act and sued a local Ohio TV station arguing that he'd have no incentive to perform if TV broadcasters could show his act without consent. Zacchini won.

In the new case, the plaintiff, Experience Hendrix, cites the Zacchini case as giving states the authority to regulate infringements of personality rights within their borders.

In response, the defendant, HendrixLicensing.com, offers several fascinating arguments in an effort to curtail the expansion of publicity rights to deceased celebrities.

HendrixLicensing.com points out that Zacchini wasn't a dead person and that the Washington law does the opposite of what the Supreme Court intended when it blessed publicity rights in the interest of spurring creative activity. In one brief to the court, the defendant writes:

"Nothing about the [Washington Publicity Rights Act] clauses at issue encourage creation, in fact it does just the opposite, stifling it, pulling back Jimi Hendrix's and others righth of Publicity from the Public Domain. It eliminates the ability of photographers to sell their legally obtained pictures and movies, artists to sell their paintings, sculptures and other likenesses, and for either to create derivative works thereof."

The defendant also challenges the constitutionality of this law by arguing that Washington has overstepped its boundaries in terms of due process and the commerce clause. It argues that Washington can't legislate a right belonging to Jimi Hendrix since there was hardly any connection between the rocker and the state.

Further, the defendant says that publicity rights interfere with copyright law, violate the First Amendment, the Privileges and Immunities Clause and the Takings Clause. Read the defendant's arguments here. And the plaintiff's response.

The outcome could be one to watch. If it's appealed, it could be headed up to the 9th Circuit, which covers both Washington and California, which also has broad publicity right statutes. The publicity rights of individuals versus the free speech rights of studios and publishers has been litigated before and gathered the attention of Hollywood