On October 10, Governor Schwarzenegger signed into law Senate Bill 771 (2007 Cal. Stat. ch 439) which amends California’s postmortem right of publicity statute to clarify that a deceased person’s publicity rights may be passed by will even if that person died before January 1, 1985.
This long-standing interpretation of the existing publicity rights statute (Civil Code §3344.1) had been called into question by two recent federal court decisions - CMG Worldwide, Inc. v. Milton H. Greene Archives LLC, C.D. Cal., No. CV 05-2200 (summary judgment for defendants granted May 14, 2007) and Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y., May 2, 2007) - which involved a dispute over the ownership of Marilyn Monroe’s right of publicity. Marilyn Monroe bequeathed her residuary estate to her long-time friend and acting coach Lee Strasberg; the question before the courts was whether Monroe’s publicity rights existed when she died in 1962 and could be bequeathed as a property right.
California’s right of publicity statute recognizing a posthumous right was enacted in 1984 and became effective January 1, 1985. California courts have recognized the right of publicity as a property right; as such, it can be transferred during a person’s lifetime or through a testamentary document. Some court decisions have also held that a decedent cannot bequeath property that he or she does not own at the time of death. The courts in these cases concluded that Monroe’s publicity rights did not exist at the time of her death and therefore could not be bequeathed to the residuary beneficiary of her will.
Senate Bill 771 reaffirms and clarifies the retroactive character of California’s right of publicity statute by, among other things, clearly specifying that “[t]he rights recognized under this section shall be deemed to have existed at the time of death of any deceased personality who died prior to January 1, 1985, and, except as provided in subdivision (o), shall vest in the persons entitled to these property rights under the testamentary instrument of the deceased personality effective as of the date of his or her death. In the absence of an express transfer in a testamentary instrument of the deceased personality’s rights in his or her name, voice, signature, photograph, or likeness, a provision in the testamentary instrument that provides for the disposition of the residue of the deceased personality’s assets shall be effective to transfer the rights recognized under this section in accordance with the terms of that provision.”