Earlier this year, Airbnb ran a contest in which one winner could “come stay in the former home of Julia Child.” The company advertised that entrants could imagine themselves “walking the halls of Julia Child’s former home,” and “channeling the culinary genius of Julia Child,” while “combing over the knick knacks in her kitchen exactly as she left them.” Although the contest may have been a hit with travelers and fans of the original celebrity chef, the chef’s estate was less enthused. This week, The Julia Child Foundation for Gastronomy and the Culinary Arts sued Airbnb and its publicity firm, arguing that contest violated Child’s right of publicity.
According to the complaint, Airbnb contacted the Foundation in April, and sought permission to use Child’s name and likeness in connection with the contest. Consistent with Child’s longstanding policy of refusing requests to associate her name or image with commercial products or brands, the Foundation expressly declined the request. Nevertheless, Airbnb moved forward with the promotion, and used Child’s name on its website, on social media, and in an e-mail campaign. As a result, Airbnb won a trip to the California court system, where it can walk the same halls that many celebrities have walked.
Here, the plaintiff Foundation brought its “right of publicity” claim under California’s Civil Code statute. California recognizes both a common law and statutory right of publicity. A defendant may be liable for a common law “right of publicity” claim if (1) the defendant uses the plaintiff’s identity (2) to the defendant’s advantage (commercially or otherwise) (3) without the plaintiff’s consent and (4) the plaintiff is injured as a result thereof. Eastwood v. Super. Ct., 149 Cal. App. 3d 409, 417 (1983). Pertinent here, California Civil Code section 3344 adds two additional elements to the common law claim, including (1) knowing use of the plaintiff’s likeness and (2) a direct connection between the defendant’s use and the commercial purpose (i.e. that the use was directly connected with advertising or sales). Cal. Civ. Code §3344.
Unlike defamation and privacy torts, California’s statutory claim for right of publicity is descendible, and California’s postmortem right of publicity is 70 years. Cal. Civ. Code § 3344.1. California common law does not recognize a common law postmortem right of publicity. Bruce Lee Enterprises, LLC v. A.V.E.L.A., Inc., No. 10-CIV-233- LTS, 2011 WL 1327137, *7 (S.D.N.Y., Mar. 31, 2011) (noting that the postmortem right is provided by statute).
However, the postmortem right of publicity under Section 3344.1 is limited to individuals who were domiciled in California at the time of their death. Bruce Lee Enterprises, LLC v. A.V.E.L.A., Inc., No. 10-CV-2333-KMW, 2013 WL 822173 (S.D.N.Y., Mar. 6, 2013), citing Cairns v. Franklin Mint Co., 292 F.3d 1139, 1147-49 (9th Cir. 2002) (denying defendants’ motion for summary judgment where there was an issue of fact as to whether Bruce Lee died a domiciliary of California or Hong Kong); Diana Princess of Wales Memorial Fund v. Franklin Mint Co., 1999 WL 1278044, *1 (9th Cir. 1999) (no postmortem right of publicity for Princess Diana under California law because she was domiciled in Britain at the time of her death).
Here, plaintiff claims that Ms. Child was domiciled in California at the time of her death. Assuming that is correct, her postmortem right of publicity will not expire until 70 years after her death.
As we’ve noted before, the risks of using a celebrities name in ads without permission can be significant. And although there may be cases in which a company can argue that it doesn’t need permission – such as when the use is protected by the First Amendment – it might be hard for a company to argue that permission isn’t necessary, when it had previously asked for it. While we monitor this case, we encourage you to read our three-part series on Right of Publicity claims (available here: Part I, Part II, and Part III).