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In a ruling that could be slightly disconcerting for entertainment studios, news outlets and others who have dealt with the confusing nature of publicity rights laws across the nation, the 9th Circuit Court of Appeals has given a victory to famous dead people.
The case involved the estate of Jimi Hendrix battling against a vendor, HendrixLicensing.com, that sold T-shirts, posters, lights, dart boards, key chains and other items designed to capitalize on the fame of the rock legend. In February 2011, a federal judge surprised legal observers by finding that Washington state’s publicity rights law violated the due process and full faith and credit clauses of the U.S. Constitution by allowing nondomiciled celebrities to come to the state to take advantage of the state’s generous likeness statutes.
On Wednesday, the appeals court reversed that ruling, plus handed the estate further victories on the trademark front.
HendrixLicensing.com is run by Andrew Pitsicalis, a business partner of Jimi’s younger brother Leon. The estate, meanwhile, is controlled by Janie, the Hendrix brothers’ adopted sister.
When Hendrix died in 1970, the guitar legend was a resident of New York. Significantly, New York is not one of the roughly two dozen states that recognize a postmortem right of publicity. But Washington does. As such, the heirs of famous people can sue there to protect names, likenesses, voices, mannerisms, images, gestures, signatures and more.
When Pitsicalis sought to take his business to Washington, he cited a “reasonable apprehension” that Hendrix’s estate — Experience Hendrix — would use Washington’s law to stop him from licensing unofficial Hendrix-related products.
“Washington’s approach to postmortem personality rights raises difficult questions regarding whether another state must recognize the broad personality rights that Washington provides,” writes 9th Circuit Judge David Ebel in an opinion.
But the judge goes on to say that the “limited controversy” before the 9th Circuit pertains to Experience Hendrix’s right to interfere with sales just in Washington. Judge Ebel says that the state has an interest in “applying its own law” to a controversy within its borders, and that this won’t “affect transactions occurring wholly outside Washington.”
For those reasons as well as the overarching conclusion that the “narrow” Hendrix dispute won’t disrupt interstate commerce, the 9th Circuit reinvigorates Washington’s publicity rights law as constitutional. Time will tell whether other companies trafficking in celebrity images and doing business nationwide might fear getting sued in Washington.
In another part of the decision, the appeals court upholds a ruling at the district level that Pitsicalis’ use of HendrixLicensing.com and HendrixArtWork.com violated the estate’s trademark rights on “Hendrix.” Pitsicalis argued fair use, but Judge Ebel points to Pitsicalis’ acknowledgement that his domain names refer to the estate’s products (including Jimi Hendrix). For that reason, Pitsicalis continues to be liable for trademark infringement, although the appeals court vacates a permanent injunction for lack of clarity.
Finally, the 9th Circuit addressed some $1.7 million in damages awarded by a jury when this case over unlicensed Jimi Hendrix products got to trial. After the Hendrix estate won, the trial judge threw out all of the damages (including for lost profits and injury to Experience Hendrix’s reputation and goodwill) as unsupported by evidence except a $60,000 award under one of the trademark claims. The trial judge conditionally granted a new trial. Here, the 9th Circuit reinstates that full damage amount, but really doesn’t, finding it more appropriate to hold another trial given some of the confusing jury instructions.
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