Famous Dead People Love Washington
From my partner Stuart Dunwoody, an update on Rights of Publicity in Washington State. Here is a summary of some recent amendments to the Washington Personality Rights Act, RCW 63.60.010 et seq., ("WPRA") the Washington statute governing what generally are known as rights of publicity. The amendments apparently seek to ensure that the Act will apply to any decedent as to whom a personality right claim is brought in Washington, regardless of where the decedent was domiciled at the time of death, where his or her estate was probated, or whether he or she died before the Act was first enacted. The amendments appear to respond to several recent cases denying claims of personality or publicity rights. In Experience Hendrix LLC v. James Marshall Hendrix Foundation, 240 Fed. Appx. 739, 2007 U.S. App. LEXUS 15028 (9th Cir. 2007). The Ninth Circuit affirmed the district court's holding that the Hendrix Foundation could not assert a posthumous right of personality as to Jimi Hendrix under the WPRA because Hendrix was domiciled in New York, and not Washington, at the time of his death. Because New York law does not recognize a posthumous right of publicity, the court concluded that there was no right of publicity as to Hendrix. In so ruling, the court followed Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002) which similarly held that Princess Diana did have personality rights under the California right of publicity statute because at her death she was a domiciliary of the United Kingdom which does not recognize posthumous personality rights. Another recent case, Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007), held that the estate of Marilyn Monroe had no right of publicity in Monroe because at the time of her death she was a domiciliary of either New York or California, and neither of those jurisdictions recognized a right of publicity at that time. California enacted a right of publicity statute a number of years after Monroe’s death but, the Court held, Monroe could not have bequeathed any publicity rights under that statute to the residuary beneficiary of her estate because those rights did not exist at the time of her death. The recent amendments respond to these rulings in several ways. First, they state that the Act is "intended to apply to all individuals and personalities, living and deceased, regardless of place of domicile or place of domicile at time of death." Second, they define the decedents whos personality rights may be enforced under the Act – deceased individuals and deceased personalities -- to make clear that the Act extends to all decedents regardless of their domicile residence or citizenship at their time of death or otherwise. Third, they provide that personality rights recognized under the Act shall be deemed to have existed before the Act was enacted in 1998, and at the time of deathof any deceased individual or personality. Washington therefore may become a favored forum for enforcing post-mortem publicity claims, provided that the defendant in such a claim has sufficient connection with Washington to establish personal jurisdiction – as presumably would be the case if any allegedly infringing goods are sold in Washington.
