Numerous news outlets reported today that late actor Robin Williams bequeathed the rights to his name, signature, photograph and likeness to the Windfall Foundation, a charitable organization, but with a noteworthy twist – Williams restricted the exploitation of his right of publicity for 25 years after his death. In light of this apparent wholesale restriction, there will probably not be any permissible commercial uses of Williams’ name and likeness until at least August 11, 2039.
It is worth explaining that Robin Williams could bequeath, and subsequently restrict the use of, his publicity rights because he was domiciled in California at the time of his death. California recognizes a post-mortem right of publicity of 70 years. Cal. Civ. Code § 3344.1. Numerous other states, such as Indiana (100 years), Florida (40 years) and Pennsylvania (30 years), do the same. See Ind. Code §§ 32-13-1-16; 32-13-1(a); Fl. Stat. Ann. § 540.08(4); 42 Pa. Const. Stat. Ann. § 8316(c).
The result would be different, however, in states that do not recognize post-mortem rights of publicity (such as New York), and thus do not provide celebrity domiciliaries with any such devisable rights. This was the holding in Milton H. Greene Archives, Inc. v. CMG Worldwide Inc., 692 F.3d 983 (9th Cir. 2012), which was a long-running dispute over the right to use, license and distribute photographs of Marilyn Monroe. The alleged owner of Monroe’s right of publicity, Monroe LLC, asserted that Monroe was domiciled in California at the time of her death, thus entitling it to the benefits of California’s posthumous statutory right of publicity. Id. at 991-92. Ultimately, however, the Ninth Circuit confirmed that Monroe died while she was domiciled in New York, and thus New York law applied to the question of whether Monroe had a posthumous right of publicity in the first instance. Id. at 1000. Because no such right existed under New York law, the court concluded that Monroe LLC did not inherit any rights to Monroe’s name, image, voice or likeness through the residual clause of her will, and therefore could not enforce it against third parties. Id. Appropriately, the court concluded its opinion by stating
We observe that the lengthy dispute over the exploitation of Marilyn Monroe’s persona has ended in exactly the way that Monroe herself predicted more than fifty years ago: “I knew I belonged to the Public and to the world, not because I was talented or even beautiful but because I had never belonged to anything or anyone else.”