In a surprise decision, a federal judge in Washington has ruled that the state’s publicity rights law violates the U.S. Constitution. The case involved the estate of Jimi Hendrix battling against a vendor, HendrixLicensing.com, which sold t-shirts, posters, lights, dartbords, key chains and other items designed to capitalize on the fame of the rock legend. On Tuesday, Judge Thomas S. Zilly ruled for the defendant.
The lawsuit against HendrixLicensing.com begin as a trademark dispute, but after Washington amended its law in 2008 so that dead celebrities could enjoy more generous publicity rights in the state, the defendant asked for a court order that declared that Hendrix’ publicity rights weren’t applicable to the dispute.
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Washington is one of about 20 states that grant individuals generous publicity rights protections. Celebrities and their estates have taken advantage of such friendly jurisdictions by filing lawsuits there to stop exploitation of their names, likenesses, voices, mannerisms, images, gestures, signatures, and more. The heavy litigation on this front against publishers, studios, websites, and others has come under scrutiny of late for fear it may be interfering with free speech, and as the defendant argued in the Hendrix case, that it might be stifling innovation.
In his decision, Judge Zilly takes a look at the history of the Washington Publicity Rights Act, which was first passed in 1998. After an earlier decision found that Hendrix’ publicity rights didn’t descend to his father and sole heir, Al Hendrix, since he didn’t reside in Washington at the time of his death, Washington amended its publicity rights law by specifically granting dead celebrities publicity rights retroactively. That ensured that the intellectual property was transferred from a deceased celebrity to his heirs, allowing estates to sue over port-mortem rights regardless of where the celebrity had lived.
Now, Judge Zilly has taken a stand against this last part, ruling for HendrixLicensing.com, finding on summary judgement that the Washington Publicity Rights Act violates the due process and full faith credit clauses of the U.S. Constitution by allowing non-domiciled celebrities to essentially forum-shop. The judge also dismissed the other trademark allegations against HendrixLicensing.com.
Here’s a copy of the 47-page decision, which stands a reasonable chance of being reviewed by much higher appeals courts.
