January 30, 2014 1:43pm PT by Eriq Gardner
Bing Crosby's First Wife Denied Value of His Publicity Rights
It's better to be a living famous person than a dead famous person, but being a dead famous person isn't all bad.
Michael Jackson made $160 million between June 2012 and June 2013, according to Forbes. Elvis Presley earned $55 million in his time. Elizabeth Taylor raked in $25 million, Marilyn Monroe $15 million and Steve McQueen $9 million.
The lucre is partly derived from publicity rights, which covers the names, voices, signatures, photographs and other forms of a person's likeness. Dozens of states have extended this benefit to celebrities posthumously, and just yesterday in a case involving Jimi Hendrix, the 9th Circuit refused to declare Washington's publicity rights statute as unconstitutional.
The licensing spoils go to the dead famous person's heirs, but a fascinating legal question remains unsolved: Do ex-wives and ex-husbands (and their descendants) deserve a piece of these riches?
A California appeals court got its chance on Wednesday to provide an answer.
The dispute involved singer-actor Bing Crosby, first married to a woman named Wilma. From 1930 until 1952, the two were married and had four sons. Then Wilma died.
Five years later, Crosby married actress Kathryn Grant. Together, they had three children and remained married for the next 20 years, until Crosby died in 1977. Crosby's will left everything to his second wife.
HLC Properties was the trust set up to manage the estate.
In 1996, the trustees of Wilma's estate sued HLC over "interest, dividends, royalties and other income derived from community property" of Bing and Wilma.
The case was settled in 1999 for about $1.5 million.
But that wasn't the end of this, because a few years later, Wilma's Trust came around to the idea that they should be benefiting from Crosby's publicity rights. After all, he became famous during that first marriage. Weren't those publicity rights community property?
It is a fascinating issue and one that is likely to come up in the future. In this particular situation, the judges couldn't reach the question before figuring out whether the 1990s dispute and settlement precluded the claim from Wilma's Trust.
The 1999 agreement between the parties entitled the Wilma Trust to a share of income "derived" during the first marriage and "discovered in the future." Otherwise, the settling parties released claims on each other. So if Wilma's Trust could have made the claim back in the 1990s, it wasn't newly discovered. It was res judicata, a matter already judged.
In 2008, California governor Arnold Schwarzenegger authorized an amendment to the state's publicity rights statute, and the Wilma Trust pointed to this change to make the case that something new had happened.
But on Wednesday, California appeals judge H. Walter Croskey writes in an opinion how the state's posthumous right of publicity has been on the books for quite some time and that the 2008 law "only clarified" the older statute's original intent.
"Since we conclude that SB 771 only clarified existing law, the amendment did not create any new rights that fell outside of the 1999 settlement's release of all claims to community property, the argument of Wilma's Estate that Bing's right of publicity did not exist in 1999 and thus could not have been the subject the settlement agreement must fail," writes the appeals judge, reversing the trial judge. "The petition of Wilma's Estate is clearly barred by res judicata."
So is the right of publicity community property?
Although the appeals court needn't answer the question because the lawsuit was precluded, a footnote on the last page suggests an answer. See it here. It's a wowser of a footnote, confusing as hell, but it suggests that publicity rights law stands outside of family law -- that the way someone transfers a publicity rights asset strongly suggests it is a "separate property" rather than a community property asset.
Cynthia Tobisman, one of the attorneys who represented Kathryn Crosby and her children, makes a strong argument that this could become the legal footnote of the year (at least in family law circles).
After all, if publicity rights are not community property, that won't just impact dead celebrities but living ones as well. "This suggests an entertainer holds onto their publicity rights their whole life," she says. "If Tom Cruise gets divorced, Katie Holmes can't say I have half of your right to publicity."