Reconciling California's Pre, Post, and Per Mortem Rights of Publicity


RECONCILING CALIFORNIA'S PRE, POST, AND PER
MORTEM RIGHTS OF PUBLICITY

Keenan C. Fennimore

I. INTRODUCTION

In May 2010 the California legislature passed AB 585, an assembly bill
extending the state's post mortem right of publicity to people whose identities
have commercial value because of their death. 1 The bill amended California
Civil Code section 3344.1, which previously protected only people whose
identities had commercial value at the time of their death.2 AB 585 was
proposed in response to the then-recent controversy surrounding the sale of t-
shirts protesting the war in Iraq and featuring the names of American soldiers
who died while serving there.3 The law now entitles families of deceased
soldiers to compensation for such unauthorized commercial use.4 At least five
other U.S. states statutorily recognize publicity rights for deceased soldiers;5

however, AB 585 was unique in that it extended protection to the non-military
deceased as well.6

In general, the U.S. right of publicity is "the inherent right of every
human being to control the commercial use of his or her identity."7 Although
nearly two-thirds of all U.S. states recognize some form of publicity protection,
either by statute or common law,8 a sufficient justification for how and why the
law provides such a right remains in dispute.9 Despite some initial
disinclination among courts and commentators toward categorizing the right of
publicity, 10 what was once considered only a proprietary interest in the

* J.D., 2012, Indiana University Robert H. McKinney School of Law; B.A., 2004,

Indiana University.
1. 2010 Cal. Stat. ch. 20, § 1. (emphasis added) (codified at CAL. CIV. CODE § 3344.1(h)

(2011)).
2. CAL. CIV. CODE § 3344. 1(h) (2009) (emphasis added), amended by 2010 Cal. Stat. ch.

20, § 1.
3. 2009 Legis. B. Hist. Cal. A.B. 585 (Bill Analysis, Assembly Floor), May 3,2010; see

infra Part III.B.3.
4. CAL. CIV. CODE § 3344.1(h) (2011).
5. Arizona, ARIz. REV. STAT. § 13-3726 (2009); Florida, FL. STAT. § 540.08 (2009);

Louisiana, LA. REV. STAT. ANN. § 14:102:21 (2009); Oklahoma, OKLA. STAT. tit. 21, § 839.1A
(2009); and Texas, TEX Bus. & COM. CODE ANN. § 721.002 (2009).

6. 2010 Cal. Stat. ch. 20, § 1 (defining "deceased personality" as "any natural person")
(codified at CAL. CIv. CODE § 3344.1(h) (2011)).

7. 1 J. THOMAS McCARTHY, THE RIGHTS OF PUBLICITY AND PRIVACY § 1:3 (2d ed. 2010).
8. Id. § 6:3.
9. See infra Part IV.B; Mark P. McKenna, The Right of Publicity and Autonomous Self-

Definition, 67 U. PITT. L. REV. 225,247 (2005).
10. See infra notes 173-76 and accompanying text.



IND. INT'L & COMP. L. REV.

commercial value of identity is now widely regarded as a bona fide property
right. 1 As a result of this foundational shift, the right of publicity has been
commonly justified post hoc by the traditional theories associated with property
protection in the United States: labor theory, unjust enrichment, and economic
incentives.12 These justifications have been met with postmodem criticism by
some commentators, who have examined the cultural process by which
commercial value in identity is created and have concluded that exclusive
entitlement to this value is unwarranted and its rationale, unpersuasive. 13

This Note argues that California's newly spawnedper mortem' 4 right of
publicity lacks even the weak property justifications asserted for its pre
mortem15 and post mortem 16 counterparts.' 7 As a legal remedy aimed at
protecting personal interests, AB 585 extended the state's statutory right of
publicity regime beyond any formal property rationale and provided a new
arena in which to revive the right's unsettled theoretical debate.' 8 This Note
offers a comparative perspective of identity rights in the United States and
Germany,' 9 and it suggests the concept of economic self-determination as a
means of theoretically reconciling California's disparate statutes in the face of
an incoherency that has plagued the property-based right of publicity in the
United States for nearly three decades.2 °

Part II of this Note traces the history of common law identity
appropriation claims in the United States, highlighting the right of publicity's
emergence from the personal right of privacy and its evolution into a

11. See infra Part IV.A.
12. See infra Part IV.B; I MCCARTHY, supra note 7, §§ 2:1,2:6; Michael Madow, Private

Ownership of Public Image: Popular Culture and Publicity Rights, 81 CALIF. L. REv. 125,178
(1993). Protection from consumer deception is another rationale asserted for the U.S. right of
publicity, which is not addressed in this Note. See id. at 228-38.

13. See infra Part IV.B; Madow, supra note 12, at 178-228; Alice Haemmerli, Whose Who?
The Casefor a Kantian Right of Publicity, 49 DuKE L.J. 383, 430-41 (1999); McKenna, supra
note 9, at 245-75; David Westfall & David Landau, Publicity Rights as Property Rights, 23
CARDOZO ARTS & ENT. L.J. 71, 117-23 (2005).

14. This Note uses the term "per mortem" to describe the right of publicity as established
for identities with commercial value because of their death. To the author's knowledge, this
prefix has never before been applied in the right of publicity context.

15. This Note uses the term "pre mortem" to easily identify the right of publicity in a living
personality, as distinguished from that in deceased per and post mortem personalities. To the
author's knowledge, this term has never before been applied in the right of publicity context.
Pre mortem publicity rights are typically referred to by courts and commentators as the general
"right of publicity."

16. This Note uses the term "post mortem" to describe the right of publicity as recognized
for identities with commercial value at the time of their death. This term is commonly applied in
the right of publicity context by courts and commentators.

17. See infra Part III.A.
18. See infra Part. III B.
19. See infra Parts III, V.
20. See infra Part IV.

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commercial property right. Part III examines the social motivations behind
California's three-piece, statutory right of publicity regime and the practical
effect of its per mortem right in light of the commercial value requirement of
publicity protection. Part IV analyzesper mortem publicity rights according to
the traditional justifications and modem critiques of the publicity-as-property
model. Part V provides a basic overview of German personality rights and the
autonomy theory that underlies their protection. This Part also highlights the
functional application of economic self-determination by German courts. Part
VI offers a brief comparative perspective of autonomy-based law in Germany
and the United States and identifies a potential source of compatibility for
personality-based identity protection in California.

II. IDENTITY APPROPRIATION IN THE UNITED STATES

In order to appreciate California's statutory contradiction, it is important
first to examine generally the U.S. right of publicity's origins in privacy law, its
evolution into a pure property right, and several resulting distinctions between
privacy and publicity as they relate to California's addition of a per mortem
statute.

A. The Right of Privacy

The right of privacy was first conceptualized in 1890 by Samuel Warren
and Louis Brandeis.2' Concerned by the rising practice of gossip j ournalism in
the United States and the technological innovations that afforded it,22 Warren
and Brandeis sought to extract from existing case law an independent claim
against the unauthorized publication of private facts and photographs, for which
the law at time offered no protection.2 3 As published in their seminal article,
The Right to Privacy, Warren and Brandeis found a remedy, primarily in the
law of copyright, by extending authorial control of intentional creations to the
incidental.24 Their proposed "right to privacy" was aimed famously at
protecting "the right to enjoy life" and "the right to be let alone., 25

1. Protection of Emotional Interests

Despite wide scholastic recognition of The Right to Privacy, the alleged

21. McKenna, supra note 9, at 234; see Samuel D. Warren & Louis D. Brandeis, The Right
to Privacy, 4 HAtRv. L. REV. 193 (1890).

22. Warren & Brandeis, supra note 21, at 195. "Instantaneous photographs and newspaper
enterprise have invaded the sacred precincts of private and domestic life; and numerous
mechanical devices threaten to make good the prediction that 'what is whispered in the closet
shall be proclaimed from the house-tops."' Id.

23. McKenna, supra note 9, at 234; Warren & Brandeis, supra note 21, at 197.
24. McKenna, supra note 9, at 234; Warren & Brandeis, supra note 21, at 198-200.
25. Warren & Brandeis, supra note 21, at 193.



IND. INT'L & COMP. L. REv.

right lost its first battle in court.2 6 In Roberson v. Rochester Folding Box Co., a
young girl named Abigail Roberson sought an injunction against and
compensation for emotional injuries caused by a milling company's use of her
likeness to promote the sale of flour without her consent.27 The Franklin Mills
Company published prints featuring Roberson's image encircled by the
company's name and slogan,28 and when Roberson was recognized by others in
public, she was scoffed at and jeered, resulting in her mental anguish.29

Although acknowledging Warren and Brandeis's "clever article,' 30 the
New York Court of Appeals rejected Roberson's pioneering privacy claim.3'
The court majority concluded that the right of privacy had not yet received
recognition at law 32 and that such recognition was a concern for the state
legislature.33 Further, the majority emphasized that the law protects people's
body, reputation, and property but not their "peace of mind," "feelings," or
"happiness." 34 Four dissenting judges, however, embraced the Warren and
Brandeis article, finding the right of privacy to be the complement of
everyone's longstanding right to an inviolate person.3 5 These dissenters
dismissed the absence of exact precedent in favor of equity,36 whether the
remedy was to be found in an analogical extension of common-law principles
or the application of natural justice. 7

Three years after Roberson, the right of privacy received its first
recognition at common law. 38 In Pavesich v. New England Life Ins. Co., a man
named Paolo Pavesich brought suit against the New England Mutual Life
Insurance Company for the emotional damages he suffered as a result of the
company's unauthorized use of his recognizable image in a newspaper

26. See Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902).
27. Id. at 442.
28. Id.
29. Id. Roberson alleged that she was "greatly humiliated... causing her great distress and

suffering both in body and mind; that she was made sick and suffered a severe nervous shock,
was confined to her bed and compelled to employ a physician," resulting in $15,000 in damages.
Id.

30. Id. at 444.
31. Id. at447.
32. Id.
33. Id. at 443,447.
34. Id. at 446.
35. Id. at 449.
36. Id. at 451. "It would be... an extraordinary view which, while conceding the right of a

person to be protected against the unauthorized circulation of an unpublished lecture, letter,
drawing, or other ideal property, yet, would deny the same protection to a person, whose portrait
was unauthorizedly obtained, and made use of, for commercial purposes." Id

37. Id. at 449. "It would be a reproach to equitable jurisprudence, if equity were powerless.
in remedying a wrong, which, in the progress of civilization, has been made possible as the

result of new social, or commercial conditions." Id.
38. 1 MCCARTHY, supra note 7, § 1:17; see Pavesich v. New England Life Ins. Co., 50 S.E.

68 (Ga. 1905).

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2012] RECON'ING CALl'S PRE, POST & PER MORT RTs OF PUB 381

advertisement. 39 The advertisement depicted Pavesich and attributed to him
several lines of text endorsing New England Mutual and praising his use of the
company's services.40 Pavesich, who had never used the company's services
and had never made any such statements, found the use of his image offensive
and successfully sued the company for invasion of privacy.4' The Supreme

42
Court of Georgia adopted the Roberson dissenting opinion in its entirety,
establishing the common law right of privacy as the personal right of every
individual "to be let alone.'A3

As privacy law developed across the United States, not all people found
themselves within the ambit of its protection. Specifically, celebrity plaintiffs
found it difficult to recover for the unauthorized appropriation of their names
and likenesses because of the right's emotional focus. 4 In one famous case,45

O'Brien v. Pabst Sales Co., the United States Court of Appeals for the Fifth
Circuit rejected an invasion of privacy claim brought by a professional football
player named Davey O'Brien. 46 The well-known player sought damages from a
distributor of "Pabst Famous Blue Ribbon Beer" for the company's use of his
photograph in its advertising calendar.47 O'Brien argued that he suffered
damage to his name by its commercial association with beer48 and that the
advertisement falsely indicated that he endorsed the company's product.49 The
court concluded, however, that the publicity O'Brien received "was only that
which he had been constantly seeking and receiving" as a public figure.50

Because O'Brien was not a "private person," he had no claim for invasion of
the right of privacy.5

39. Pavesich, 50 S.E. at 68.
40. Id. at 68-69. The text of the advertisement read, "In my healthy and productive period

of life I bought insurance in the New England Mutual Life Insurance Co., of Boston, Mass., and
to-day my family is protected and I am drawing an annual dividend on my paid-up policies." Id.
at 69.

41. Id.
42. Id. at 78 (quoting Roberson 64 N.E. at 448-51).
43. Id. (quoting Roberson, 64 N.E. at 449). Accord Melvin v. Reid, 297 P. 91, 92 (Cal.

Dist. Ct. App. 1931).
44. 1 MCCARTHY, supra note 7, § 1:25.
45. Id.
46. O'Brien v. Pabst Sales Co., 125 F.2d 167, 168, 170 (5th Cir. 1941).
47. Id. at 168.
48. Id. at 170. The athlete testified "that he was a member of the Allied Youth of America,

the main theme of which was the diong [sic] away with alcohol among young people; that he
had had opportunities to sell his endorsement for beer... and had refused it; and that he was
greatly embarrassed and humiliated when he saw the calendar and realized that his face and
name was associated with publicity for the sale of beer." Id. at 168-69.

49. Id. at 170.
50. Id. The athlete was "perhaps the most publicized football player of the year 1938-39."

Id. at 169.
51. Id. at 170. Accord Cohen v. Marx, 211 P.2d 320, 321 (Cal. Dist. Ct. App. 1949).



IND. INT'L & COMP. L. REv.

2. Privacy's Inalienability

Privacy's inalienability was another challenge that celebrities faced as a
result of the right's emotional focus. In Hanna Mfg. Co. v. Hillerich & Bradsby
Co., a longtime baseball bat manufacturer, Hillerich & Bradsby, sought to
enjoin a newcomer to the business, Hanna Manufacturing, from imprinting bats

12with the names of famous baseball players. Because Hillerich & Bradsby
maintained exclusive contracts with many players for the use of their names,
autographs, and photographs in connection with the sale of baseball bats, the
company argued that the players had assigned to it their property rights in their
names.53 The United States Court of Appeals for the Fifth Circuit, however,
denied the manufacturer's injunction. 4 Finding the contracts simply to be a
waiver of the players' right of privacy rather than an assignment of that right to
Hillerich & Bradsby, the court emphatically stated, "Fame is not merchandise.
It would help neither sportsmanship nor business to uphold the sale of a famous
name to the highest bidder as property." 55

3. Privacy's Terminability

The personal, emotional nature of the right of privacy also rendered it
incapable of surviving the death of the right's holder. In Jesse James, Jr. v.
Screen Gems Inc., the wife of Jesse James, Jr., son of the infamous outlaw Jesse
James, sought compensation from a production company for its commercial
exploitation of her deceased husband's name and personality in a biographical
film titled, Bitter Heritage.56 By her designation as "Mrs. Jesse James, Jr.," the
wife claimed an interest in her deceased husband's right of privacy. 57 Yet, the
court found the alleged wrong to be directed toward the decedent, not his wife,
and therefore, concluded the facts of her complaint to be insufficient to
constitute an invasion of privacy.5 8 The wife's asserted cause of action for an
invasion of privacy was personal to Jesse James, Jr. and was not capable of
surviving his death.59

52. Hanna Mfg. Co. v. Hillerich & Bradsby Co., 78 F.2d 763, 763-64 (5th Cir. 1935).
53. Id. at 764, 765-66.
54. Id. at 768.
55. Id. at 766-67. Accord Strickler v. Nat'l Broadcasting Co., 167 F. Supp. 68 (S.D. Cal.

1958).
56. Jesse James, Jr. v. Screen Gems, Inc., 344 P.2d 799, 800 (Cal. Ct. App. 1959). The wife

also claimed personally to have suffered emotional injuries as a result of the film. Id. at 799-800.
57. Id. at 800.
58. Id. at 801.
59. Lugosi v. Universal Pictures, 603 P.2d 425,430 (Cal. 1979) (discussing Jesse James,

Jr., 344 P.2d 799). "When the right invaded was more strictly the privilege 'to be let alone,' the
courts in this state have refused to extend to the heirs of the (potential) plaintiff the right to
recover for the invasion of that right: 'It is well settled that the right of privacy is purely a
personal one; it cannot be asserted by anyone other than the person whose privacy has been

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B. The Right of Publicity

Celebrity struggles to recovery under claims for invasion of privacy by
commercial appropriation, magnified by the rise of celebrity culture in the
United States, 60 set the stage for the evolution of property-based publicity

61protection. In this light, it has been stated that "[t]he right of publicity was
created not so much from the right of privacy as from frustration with it."62

1. Protection of Economic Interests

Fifteen years after Hanna Manufacturing struck out in the Fifth Circuit,
and on an almost identical set of facts, the United States Court of Appeals for
the Second Circuit explicitly rejected the holding of that case and gave life to
the common law right of publicity. 63 In Haelan Laboratories, Inc. v. Topps

Chewing Gum, Inc., rival chewing gum manufacturers were competing for the
rights to use baseball players' names and photographs on baseball cards. 64

Haelan Laboratories had exclusive agreements with certain players whose
names and photographs were used by Topps Chewing Gum without Haelan's
authorization.6

' Topps claimed that privacy was a personal and non-assignable
right and that Haelan merely retained a waiver of the players' rights of
privacy.66 In rejecting this defense, the court concluded that, "in addition to and
independent of th[e] right of privacy.., a man has a right in the publicity value
of his photograph .... This right might be called a 'right of publicity."' 67

2. Publicity's Alienability

Although rightfully celebrated as the foundation of the property-based
right of publicity, Haelan Laboratories, Inc. had the practical effect simply of
making one's likeness alienable via assignment.68 As such, the decision reflects

69
an "eminently functionalist" approach to commercial identity appropriation.
In establishing the right of publicity as protecting an entirely different interest
from the right of privacy, one focusing uniquely on economic injury rather than

invaded, that is, plaintiff must plead and prove that his privacy has been invaded. Further, the
right does not survive but dies with the person."' Id. Accord Metter v. Los Angeles Examiner,
95 P.2d 491 (Cal. Dist. Ct. App. 1939).

60. Michael Madow offers a thorough account of the rise of celebrity culture in America.
See Madow, supra note 12, at 147-67.

61. Id. at 167.
62. Id.
63. 1 MCCARTHY, supra note 7, § 1:26.
64. Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 867 (2d Cir. 1953).
65. Id.
66. Id.; see 1 MCCARTHY, supra note 7, § 1:26.
67. Haelan Labs., Inc., 202 F.2d at 868. AccordMotschenbacherv. R.J. Reynolds Tobacco

Co., 498 F.2d 821 (9th Cir. 1974).
68. Westfall & Landau, supra note 13, at 76-77.
69. Id. at 77.



IND. INT'L & COMP. L. REV.

hurt feelings and mental anguish,7 ° Judge Frank was merely responding to pre-
existing business practices.71 The judge explained:

[I]t is common knowledge that many prominent persons
(especially actors and ball-players), far from having their
feelings bruised through public exposure of their likenesses,
would feel sorely deprived if they no longer received money
for authorizing advertisements, popularizing their
countenances, displayed in newspapers, magazines, busses,
trains and subways. This right of publicity would usually yield
them no money unless it could be made the subject of an
exclusive grant which barred any other advertiser from using
their pictures.72

3. Publicity's Descendibility

Despite its economic focus, the right of publicity's roots in privacy law
made it difficult for some courts to shake the "personal" label. 73 In Lugosi v.
Universal Pictures, the Supreme Court of California rejected the notion that the
right of publicity was descendible.74 The claimants in Lugosi were the heirs of
actor B6la Lugosi, known for his role in the 1931 film, Dracula.5 Lugosi's
heirs brought suit against Universal Studios, the movie studio for which Lugosi
had worked, seeking to recover profits made by the studio's licensing of the
Lugosi's image, as the Dracula character, for merchandising purposes.76 The
court recognized that Lugosi had a proprietary interest in his identity77 but ruled
that this interest had not passed to Lugosi's heirs on his death.78

Problematically, 79 the court concluded, "[T]he right to exploit name and
likeness is personal to the artist and must be exercised, if at all, by him during
his lifetime."8°

In dissent, Chief Justice Bird challenged the Lugosi majority's rejection

70. Ben C. Adams, Recent Development, Inheritability of the Right of Publicity Upon the
Death of the Famous, 33 VAND. L. REv. 1251, 1252 (1980).

71. Westfall & Landau, supra note 13, at 77-78. "[B]aseball card companies had been
signing exclusive contracts with players for some time prior to the decision," and "[s]imilar
practices were occurring in other areas of the entertainment industry." Id.

72. Haelan Labs., Inc., 202 F.2d at 868.
73. 1 MCCARTHY, supra note 7, § 1:32.
74. Lugosi v. Universal Pictures, 603 P.2d 425, 431 (Cal. 1979).
75. Id at 426-27.
76. Id. at 427.
77. Id. at 428.
78. Id. at 427, 431 (reversing the lower court's finding of a descendible right ofpublicity).
79. See infra Part III.B.2.
80. Lugosi, 603 P.2d at 431 (emphasis added).

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of a descendible right of publicity. 81 Distinguishing the right of publicity's
proprietary nature from the personal right of privacy, Chief Justice Bird found
no persuasive policy that suggested the right of publicity "should not descend at
death like any other intangible property right. ' , 82 This dissenting opinion
"became the inspiration" for the enactment of California's statutory descendible
right of publicity only five years later.83

III. CALIFORNIA AB 585 IN PERSPECTIVE

California has maintained two statutory approaches to the right of
publicity since 1984.84 The state'spre andpost mortem statutes were developed
as supplementary protection to its common law right of publicity,8 5 and they
represent legislative responses to two similar sociolegal events. The enactment
ofAB 585 added a third approach-theper mortem right of publicity.8 6 But the
social motivations for California's per mortem protection and the statute's
practical effect within the state's existing statutory regime reveal AB 585 as a
contradictory application of the publicity-as-property model.

A. California's Statutory Regime

California's pre mortem right of publicity statute is codified in section
3344 of the California Civil Code.87 The state's post mortem statute, originally
enacted as section 990,88 is found in section 3344.1 .89 This section also
provides for California's per mortem right of publicity, as established by AB
585.90

1. Pre Mortem Protection

Section 3344 was legislated in response to a complaint about computer-
generated solicitation letters mailed by Reader's Digest to a series of

81. Id. at 434 (Bird, C.J., dissenting).
82. Id. at 445-46 (Bird, C.J., dissenting) (quoting Factors Etc. Inc. v. Creative Card Co.,

444 F. Supp. 279, 284 (S.D.N.Y. 1977)).
83. Steven Andreacola, Trademark's Neighbors: History of California Civil Code 3344.1,

12 J. CONTEMP. LEGAL ISSUEs 592,594 (2001).
84. 1 MCCARTHY, supra note 7, § 6:24; see 1971 Cal. Stat. ch. 1595, § 1 (enacting pre

mortem statute); see also 1984 Cal. Stat. ch. 1704, § 1 (enacting post mortem statute).
85. See Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797,799 (Cal. 2001) (citing

Lugosi, 603 P.2d at 428 n.6).
86. See supra note 14.
87. CAL. CIV. CODE § 3344 (2011).
88. 1984 Cal. Stat. ch. 1704, § 1; CAL. CIV. CODE § 990 (1988), renumbered by 1999 Cal.

Stat. ch. 998, § 1.
89. CAL. CIv. CODE § 3344.1 (2011).
90. See 2010 Cal. Stat. ch. 20, § 1.



IND. INT'L & COMP. L. REV.

neighboring individuals. 9' Each form letter stated that its recipient and his or
her neighbor had been selected as sweepstakes contestants by the magazine. 92

The neighbor was identified by name, and each recipient was named as a
"neighbor" in solicitation of another resident in the neighborhood. 93 In an
ensuing lawsuit, Stilson v. Reader's Digest Assn., Inc., the neighbors
complained that these letters were a misappropriation of their names to sell
magazine subscriptions in violation of their rights to privacy. 94 In order to
recover damages, however, California's privacy law required each recipient to
prove mental suffering, a burden that ultimately defeated the neighbors'
certification as a class.95

In response to and during this litigation, the California legislature added
section 3344 to the state's Civil Code. 96 The statute was designed to resolve the
neighbors' need to prove damages by providing a minimum statutory recovery
of $30097 for any invasion of privacy by commercial appropriation. 98 As
originally enacted in 1971, 99 California'spre mortem right of publicity statute
provided:

Any person who knowingly uses another's name, photograph,
or likeness, in any manner, for purposes of advertising
products, merchandise, goods or services, or for purposes of
solicitation of purchases of products, merchandise, goods or
services, without such person's prior consent . . . shall be
liable for any damages sustained by the person or persons
injured as a result thereof. In addition, in any action brought
under this section, the person who violated the section shall be
liable to the injured party or parties in an amount no less than
three hundred dollars ($300). 100

Judgment was issued against the recipients in Stilson with no discussion

91. 1 MCCARTHY, supra note 7, § 6:23 (citing Jerome E. Weinstein, Commercial
Appropriation of Name or Likeness: Section 3344 and the Common Law, 52 L.A.B.J. 430,432
(1977)); Stilson v. Reader's Digest Assn., Inc., 28 Cal. App. 3d 270, 272 (1972).

92. 1 MCCARTHY, supra note 7, § 6:23; Stilson, 28 Cal. App. 3d at 272.
93. 1 MCCARTHY, supra note 7, § 6:23; Stilson, 28 Cal. App. 3d at 272.
94. Stilson, 28 Cal. App. 3d at 273.
95. Id. at 273-74.
96. 1971 Cal. Stat. ch. 1595, § I (now codified at CAL. CIv. CODE 3344.1 (2011)).
97. In 1984 the statutory minimum recovery was raised to $750. 1984 Cal. Stat. ch. 1704, §

2 (now codified at CAL. CIV. CODE § 3344(a) (2011)).
98. 1 MCCARTHY, supra note 7, at § 6:23. "The use is without the consent of such persons,

and, unless their name has an ascertainable commercial value, they are without effective legal
remedy." Id. § 6:23 n.6 (quoting Summary of Legislation, AB 826, at 3 (1971)).

99. 1971 Cal. Stat. ch. 1595, § 1.
100. CAL. CIV. CODE § 3344(a) (1972); see Weinstein, supra note 91, at 433 n.17.

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of section 3344 101 But as a known catalyst for the statute, the case's underlying
facts illustrate that California's pre mortem right of publicity was initially
motivated by emotion-based, privacy concerns rather than proprietary interests
in commercial value. 0 2 Although the broad language of section 3344 seemed to
allow for the inclusion of both types of identity protection, 10 3 Chief Justice Bird
prompted a narrower reading of the statute in his Lugosi dissent:

The legislative history of section 3344 strongly suggests that
the Legislature was concerned with an individual's right to
privacy, not an individual's proprietary interest in his or her
name and likeness . . . . In contrast to these numerous
references to the right of privacy, there is no mention in the
legislative documents of the right of publicity or the economic
interest protected thereunder. 104

In 1985 the California legislature passed the Celebrity Rights Act,
amending section 3344 to provide for the additional recovery of "any profits
from the unauthorized use that are attributable to the use and are not taken into
account in computing the actual damages.' 0 5 In contrast to the privacy motives
of the original statute's enactment, the language added by the amendment
evokes the economic focus of the now-recognized right of publicity. 0 6 The
California Court of Appeals has since clarified that the statutory minimum can
only be recovered as a measure of damages for mental distress, 0 7 while a
defendant's "attributable" profits are only recoverable for injury to the
commercial value of identity.'0 8 Section 3344 therefore provides hybrid
privacy-publicity protection for commercial appropriation of identity.'0 9 The
nature of the right asserted under the pre mortem statute-privacy or
publicity--depends on the type of damages a claimant seeks.

2. Post Mortem Protection

In addition to its pre mortem amendments, the Celebrity Rights Act also

101. 1 McCARTHY, supra note 7, § 6:23.
102. Id.
103. Id. ("Recoverable damages under the statute included both kinds of injury within the

phrase 'shall be liable for any damages sustained by the person or persons injured as a result
thereof."').

104. Lugosi v. Universal Pictures, 603 P.2d 425, 442 (Cal. 1979) (Bird, C.J., dissenting).
105. 1984 Cal. Stat ch. 1704, § 1 (emphasis added) (now codified at CAL. CIV. CODE §

3344(a) (2011)).
106. 1 McCARTHY, supra note 7, § 6:23.
107. Miller v. Collectors Universe, Inc. 159 Cal. App. 4th 988, 1006 (2008); see 1

MCCARTHY, supra note 7, § 6:46.
108. 1 MCCARTHY, supra note 7, § 6:46.
109. Baugh v. CBS, Inc., 828 F.Supp. 745, 753 (N.D. Cal. 1993).



IND. INT'L & COMP. L. REv.

enacted California Civil Code section 990 (now section 3344.1),io which
established post mortem publicity protection for deceased personalities."'
Section 3344.1 provides remedies for infringement that are similar to
California's pre mortem statute." 2 However, unlike the hybrid protection
offered by section 3344, section 3344.1 is solely concerned with a person's
proprietary interest in the commercial value of identity." 3 Subsection (b) clearly
provides, "The rights recognized under this section are property rights, freely
transferable or descendible .... 14

It is widely accepted that California Civil Code section 990 was enacted
to legislatively overrule the California Supreme Court's holding in Lugosi,"5

that California's common law right of publicity was not descendible.116 Inspired
by Chief Justice Bird's dissenting opinion, lobbied for by the Screen Actors
Guild, and supported by numerous celebrities and celebrity heirs," 17 section 990
(now section 3344.1) established a claim for the successors-in-interest of
"deceased personalities," 1 8 meaning people whose identities had commercialvalue at the time of their death." 9

3. Per Mortem Protection

Unlike like with its pre and post mortem statutes, the California
legislature went beyond state lines to find its motivation for establishing per
mortem protection. AB 585 was proposed in response to nationwide
controversy surrounding an Arizona peace activist named Dan Frazier. 2

0

Frazier owns and operates a website' 21 from which he sells merchandise
expressing various political views, including several disputed anti-war t-

110. 1984 Cal. Stat. ch. 1704, § 1; CAL. CIV. CODE § 990 (1988), renumbered by 1999 Cal.
Stat. ch. 998, § 1 (now codified at CAL. CV. CODE § 3344.1 (2011)).

111. CAL. CIV. CODE § 3344.1(a) (2009), amended by 2010 Cal. Stat. ch. 20, § 1. "Any
person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any
manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or
soliciting purchases of, products, merchandise, goods, or services, without prior consent from
the person or persons specified in subdivision (c), shall be liable for any damages sustained by
the person or persons injured as a result thereof." Id.

112. Compare CAL. CIV. CODE § 3344.1(b) (2009), amendedby 2010 Cal. Stat. ch. 20, § 1,
with CAL. CIV. CODE § 3344(a) (2011).

113. See CAL. CIV. CODE § 3344.1 (b) (2009), amended by 2010 Cal. Stat. ch. 20, § 1.
114. Id.
115. Andreacola, supra note 83, at 593.
116. 1 MCCARTHY, supra note 7, § 6:24.
117. Andreacola, supra note 83, at 593 n. 11.
118. CAL. CV. CODE § 990(b)-(d) (1988), renumbered by 1999 Cal. Stat. ch. 998, § 1 (now

codified at CAL. CIV. CODE § 3344.1(b)-(d) (2011)).
119. CAL. Civ. CODE § 990(h) (1988) (emphasis added), renumbered by 1999 Cal. Stat. ch.

998, § 1 (now codified at CAL. Civ. CODE § 3344.1(h) (2011)).
120. 2009 Legis. B. Hist. Cal. A.B. 585 (Bill Analysis, Assembly Floor), May 3, 2010.
121. See CARRYABIGSTICKER, http://www.carryabigsticker.com/ (last visited Aug. 31,2012).

388 [Vol. 22:2



2012] RECON'ING CALI'S PRE, POST & PER MORT RTS OF PUB 389

shirts. 122 One specific t-shirt displays the words, "Bush Lied" and "They Died,"
printed over a background of the names of 3,461 deceased soldiers. 12 3

Additional text on the shirt indicates that these names represent "U.S. troops
who died in Iraq from March 20, 2003 to October 23, 2006. '"124

. Throughout the United States, numerous family members of deceased
soldiers publicly objected to Frazier's shirt, some threatening to sue Frazier if
he did not cease and desist his use of the soldiers' names. 25 Additionally,
several Arizona families complained to the state legislature and governor in an
effort to prevent future sales of the shirt. 126 These complaints resulted in the
enactment of an Arizona criminal statute127 that protects against knowing use of
a deceased soldier's name or image for commercial purposes without the prior
consent of the decedent's next of kin. 128 Violators of this law are guilty of a
Class 1 misdemeanor 129 and subject to civil liability under Arizona's right of
publicity statute.' 

30

One of the asserted purposes for Arizona's deceased soldier statute is "to
protect military families in mourning for their sons and daughters killed in the
war."' 131 Similarly, the author of AB 585 described his motivation behind
California's per mortem right of publicity amendment, stating, "[O]ut of
respect to both the soldiers and their families, the names of fallen soldiers
should not be exploited for commercial gain.' '132 The California Senate's
analysis of AB 585 echoed this sentiment, adding, "[P]arents of soldiers who
had been lost in the war in Iraq, state that 'exploitation because of death solely
for monetary gain is reprehensible and in complete disregard for the parents'
well-being. "1 33 These emotion-based statements stand in stark contrast to the
economic motivations for the state'spre andpost mortem statutes. And in this
light, AB 585 misapplied California's publicity-as-property model in order to
protect the personal interests of the deceased-interests that are fundamentally

122. Frazier v. Boomsma, 2007 U.S. Dist LEXIS 72427, *2 (D. Ariz. 2007).
123. Id. Two additional shirts containing different anti-war messages printed over these same

names are also sold. Id. at *2-3.
124. Id. at *2.
125. Id. at *5.
126. Id.
127. Id.
128. ARIZ. REV. STAT. § 13-3726(A) (2011).
129. Id. § 13-3726(D).
130. Id. § 13-3726(B) (incorporating ARIz. REV. STAT. § 12-761 (2010)). Frazier eventually

obtained an injunction against his potential prosecution under these statutes on the grounds that
it would violate his First Amendment rights. Frazier, 2007 U.S. LEXIS 72427, at *53-55.

131. Id. at *40.
132. 2009 Legis. B. Hist. Cal. A.B. 585 (Bill Analysis, Assembly Floor), May 3, 2010

(emphasis added).
133. 2009 Legis. B. Hist. Cal. A.B. 585 (Bill Analysis, Senate Floor), April 23, 2010

(emphasis added).



IND. INT'L & COMP. L. REV.

incompatible with privacy law. 134

B. Statutory Contradiction

Motivational interests aside, California's right of publicity statutes are
functionally designed to protect people's proprietary interests in the commercial
value of their identities.135 It follows that individual recognition of these rights
must depend on whether a person's identity possesses commercial value. 36

Compounding interpretations of this commercial value requirement, set forth
below, have established the prevailing view, at least academically, that all
people-whether famous or anonymous-have rights of publicity in
California's pre and post mortem context. 37 But the statutory addition of per
mortem protection renders this conclusion ripe for reconsideration.

1. Pre Mortem Attachment

Pre mortem right of publicity claimants generally have little trouble
proving the commercial value of their identities. 3 8 This is primarily because
most section 3344 claims are brought by celebrities, 139 who generally make a
living exploiting their personalities in one way or another. 40 Courts in
California, however, have consistently voiced that non-celebrity claimants too
are able to assertpre mortem right of publicity claims.' 4' The argument goes:
"The appropriation of the identity of a relatively unknown person may result in

134. See supra Part II.A.1.
135. Lugosi v. Universal Pictures, 603 P.2d 425,445 (Cal. 1979); Christoffv. Nestl6 USA,

Inc., 62 Cal. Rptr. 3d 122, 143 (Cal. Ct. App. 2007); Sinatra v. Nat'l Enquirer, Inc., 854 F.2d
1191, 1202 (9th Cir. 1988). "California has an overriding interest in safeguarding its citizens
from the diminution in value of their names and likenesses, enhanced by California's status as
the center of the entertainment industry." Id.

136. In the pre mortem context, the commercial value requirement is implied by the hybrid
nature of section 3344. See supra Part III.A. 1; Miller v. Collectors Universe, Inc., 72 Cal. Rptr.
3d 194, 207-08 (Cal. Ct. App. 2008); Christoff, 62 Cal. Rptr. 3d at 141 (citing Eastwood v.
Superior Court, 198 Cal. Rptr. 342, 347 (Cal. Ct. App. 1983)). A claimant must prove economic
injury in order to recover under the statute's right of publicity arm; otherwise the claimant
effectively is limited to recovering statutory damages for invasion of privacy by commercial
appropriation. Id. California's post mortem right of publicity statute explicitly requires a
commercially valuable identity for the right's recognition. CAL. CIV. CODE § 3344.1 (h) (2009)
amended by 2010 Cal. Stat. ch. 20, § 1.

137. See supra Parts III.B.1, B.2.
138. See 1 MCCARTHY, supra note 7, §§ 4:2, 4:16.
139. See Id.
140. The Celebrity 100, FORBES.COM (June 28, 2010), http://www.forbes.com/lists/2010/

53/celeb-100-10_The-Celebrity-100.html (ranking U.S. celebrities by categorical income).
141. Motschenbacher v. R.J. Reynolds Tobacco, Co., 498 F.2d 821, 824-25 n. 1 (9th Cir.

1974); Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 542 (1993); Knb Enters. v.
Matthews, 78 Cal. App. 4th 362, 367 (2000); Christoffv. Nestld USA, Inc., 62 Cal. Rptr. 3d
122, 143 (Cal. Ct. App. 2007).

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economic injury or may itself create economic value in what was previously

valueless., 142 Employing a principle native to trademark law, 143 many

commentators have interpreted this proposition to mean commercial value can

be presumed from the defendant's unauthorized commercial use of a claimant's

identity.'44 Others have extended this presumption to conclude that all people

have a pre mortem right of publicity 14 5 as an innate right of personhood.146

2. Post Mortem Attachment

Commentators have similarly interpreted section 3344.1 as innately

providing post mortem publicity rights to all people. 147 The presumption of

commercial value principle, however, has been much more contentious in this

context.148 When the California Supreme Court first considered extending the

right of publicity beyond a person's death, the court seemingly considered a

person's pre mortem exploitation of his or her identity as a pre-requisite for

post mortem protection. 149 But as described above,'5° the Lugosi majority was

unclear as to whether "lifetime exploitation" was required for post mortem

protection, or whether the court rejected the right of publicity's descendibility

altogether. '
5'

In overruling Lugosi and creating the statutorily descendible right of

publicity, the California legislature only added to the Lugosi decision's

142. Christoff, 62 Cal. Rptr. 3d at 141 (citing Motschenbacher, 498 F.2d at 824-25 n. 11);
see I MCCARTHY, supra note 7, § 4:19-20.

143. See AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 354 (9th Cir. 1979). A defendant's
intentional appropriation of a person's identity without their consent implies that the defendant
believed that the identity was commercially valuable. 1 MCCARTHY, supra note 7, § 4:17.

144. 1 MCCARTHY, supra note 7, § 3:2. "Some damage to the commercial value of identity is
presumed once it is proved that defendant has made an unpermitted use of some identifiable
aspect of identity in such a commercial context that one can state that such damage is likely. If
plaintiff seeks the recovery of damages, then the commercial damage must be proved and
quantified." Id. Del Amo v. Baccash, 2008 WL 4414514, *6 (C.D. Cal. 2008). "[S]o long as a
plaintiffhas demonstrated (1) use of plaintiffs identity, (2) the appropriation ofplaintiff's name
or likeness to defendant's advantage, commercially or otherwise, and (3) a lack of consent, a
plaintiff need not demonstrate injury." Id.

145. 1 MCCARTHY, supra note 7, §§ 4:19-20, 6:39.
146. Id. §§ 1:3, 6:39. "[E]veryone's persona and identity has some 'commercial value'

during life and at the time of death. That value may be large or small, but it cannot be said to be
nonexistent, no matter how 'obscure' the person." Id. § 6:39.

147. Id.
148. 2 J. THOMAS McCARTHY, THE RIGHTS OF PUBLICITY AND PRIVACY, §§ 9:11-15 (2d ed.

2010).
149. See supra Part II.B.3.
150. See id.
151. Lugosi v. Universal Pictures, 603 P.2d 425, 429 (Cal. 1979). "It seems to us rather

novel to urge that because one's immediate ancestor did not exploit the flood ofpublicity and/or
other evidence of public acceptance he received in his lifetime for commercial purposes, the
opportunity to have done so is property which descends to his heirs." Id.



IND. INT'L & COMP. L. REv.

ambiguity. 152 Section 3344.1 provides post mortem protection for any person
whose identity "has commercial value at the time of his or her death";'53 yet,
the statute also states thatpost mortem protection exists "whether or not during
[his or her] lifetime" the person used his or her identity for commercial
purposes. 54 Seemingly contradictory, California's post mortem right of
publicity statute explicitly requires the existence of commercial value while
rejecting the lifetime exploitation requirement.

Naturally, this contradiction has caused academic debate.'5 5 Some
commentators have viewed section 3344.1 as invalidating the commercial value
presumption, 156 concluding that every person must not have a descendible right
of publicity. 157 Others have interpreted the statute's language as broadening the
right's post mortem scope. 58 Those favoring an expansive view of section
3344.1 point to plausible reasons why a person might not exploit his her
identity during life that have nothing to do with the non-existence of
commercial value. 159 To date, the California courts have not addressed section
3344.1 's commercial exploitation ambiguity. The majority of commentators,
however, continue to simply extend the commercial value presumption
exercised under California's pre mortem right of publicity statute to its post
mortem statutory counterpart.160 Again, the conclusion is that every person has
a post mortem right of publicity as an innate right of personhood.161

3. Per Mortem Attachment

The notion that all people innately have pre and post mortem rights of

152. 1 MCCARTHY, supra note 7, § 6:39.
153. CAL. Cwv. CODE § 3344. 1(h) (2009) (emphasis added), amendedby 2010 Cal. Stat. ch.

20, § 1.
154. Id.

155. 1 McCARTHY, supra note 7, § 6:39.
156. Stephen F. Rohde, Dracula: Still Undead, 5 CAL. LAW. 51, 53 (April 1985).
157. Id.; see generally Peter L. Felcher & Edward L. Rubin, Comment, The Descendibility of

the Right of Publicity: Is There Commercial Life After Death?, 89 YALE L.J. 1125 (1980).
158. Evie K. Rubin, Note, Right of Publicity "Survives" in California: Cal. Civ. Code

Section 990, 12 W. ST. U. L. REv. 299, 302 (1985); see generally Note, An Assessment of the
Commercial Exploitation Requirement as a Limit on the Right of Publicity, 96 HARV. L. REV.
1703 (1983); see 2 MCCARTHY, supra note 148, § 9.14 n.12.

159. Rubin, supra note 158, at 302. These include "1) waiting until an appropriate medium
for exploitation comes along, 2) personal sensitivities, 3) business judgment, 4) waiting until
fame is at its peak, 50 death occurs before opportunity to exploit, 6) to specifically create a
legacy for heirs, 7) where value could attach to name, likeness, etc. only after death, and 8)
where the type of exploitation chosen might not be available during personality's lifetime." Id.
at 302-03.

160. 1 McCARTHY, supra note 7, § 6:39 ("It is submitted that to read § 990(h) (§ 3344.1(h))
as a sensible whole, it must be concluded that everyone's identity has 'commercial value' at the
time of death.").

161. Id.

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2012] RECON'ING CALI'S PRE, POST & PER MORT RTS OF PUB 393

publicity is compromised by the passage of AB 585. Read within the state's
three-piece statutory regime, the language of California's per mortem right of
publicity statute necessarily implies that a commercially valuable identity is not
an innate right of personhood. As amended by AB 585, section 3344.1 now
defines "deceased personality" as any person whose identity "has commercial
value at the time of his or her death, or because of his or her death ....,162
This Note argues that California's addition of per mortem protection would
have been unnecessary if every person's identity is truly considered to have an
innate pre mortem commercial value, as all identities would thereby be
considered commercially valuable at the time of death.

If credence is given to the established commercial value principles set
forth above, something more than mere personhood but less than lifetime
commercial exploitation is needed to endow an identity with commercial value.
Presuming commercial value from a defendant's commercial use, this Note
recognizes that any commercial use of a person's identity in the per mortem
context necessarily occurs after that person's death. And because property
rights transfer "on death," 163 a person whose identity is without commercial
value at the time of death cannot be said to have transferred any property rights
in that identity to his or her heirs. As such, California's per mortem publicity
rights cannot be descendible-they are a posthumous creation.

IV. JUSTIFYING PUBLICITY-AS-PROPERTY

Even assuming that per mortem economic injury is possible under
California's statutory right of publicity regime and that it is indeed the injury
sought to be remedied by AB 585, a working policy justification eludes
California's per mortem publicity-as-property model. This problem has
"plagued the right of publicity" since its inception. 164

A. The Property Syllogism

In endowing the right of publicity with the proprietary characteristic of
assignability in Haelan Laboratories, Inc.,165 Judge Frank adamantly dismissed
the inquiry into whether the right should be labeled a form of "property" as well
as whether it maintained any other traditional property characteristics. 166 In a
sentiment that was shared by several early commentators on the right of
publicity,1 67 Judge Frank stated, "[T]he tag 'property' simply symbolizes the

162. CAL. CIV. CODE § 3344.1(h) (2011) (emphasis added).
163. CAL. PROB. CODE § 5507 (2010).
164. McKenna, supra note 9, at 247.

165. See supra Part II.B.2.
166. Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953); see

Westfall & Landau, supra note 13, at 77-78.
167. William L. Prosser, Privacy, 48 CAL. L. REv. 383,406 (1960). "It seems quite pointless



IND. INT'L & CoMP. L. REV.

fact that courts enforce a claim which has pecuniary worth."' 168

During the right of publicity's emerging years, courts in the United States
remained hostile toward the right's development and largely followed Judge
Frank's functionalist position.169 Commentators, however, quickly latched onto
the label debate and continued to develop the notion of publicity-as-property. 170

By the time California Civil Code section 990 was enacted in 1984, the right of
publicity was widely considered a bona fide property right by courts and
commentators alike.' 7' The statute explicitly adopts this trend by providing,
"The rights recognized under this section are property rights, freely transferable
or descendible ....

The right of publicity's expansion beyond Judge Frank's functional
assignability was driven largely by a form of reasoning that commentators call
the "property syllogism.' ' 173 Starting with the simple, but misleading, 74 premise
that the right of publicity's assignability necessarily rendered it a form of
property, many commentators jumped drastically to the conclusion that,
because publicity is property, it must share all of the traditional characteristics
of property, namely descendibility.175 This "formalistic" shift in reasoning has
resulted in "a Frankenstein bearing little resemblance to [Judge Frank's]
carefully considered functionalist purposes."'' 76

The property syllogism was highly influential on the courts that initially
considered the right of publicity's descendibility,177 and most court decisions
that followed blindly applied the preceding courts' reasoning. 78 Thus, a
descendible right of publicity was created with little consideration given to any
policy supporting it.' 79 And once most states codified the descendibility of their
right of publicity, the property-based approach became an unshakable legal
certainty.

180

to dispute over whether such a right is to be classified as property." Id. (discussing the
appropriation form of privacy invasion).

168. Haelan Labs., Inc., 202 F.2d at 868.
169. Westfall & Landau, supra note 13, at 80.
170. Id.
171. Id.
172. CAL. CIV. CODE § 990 (1988) (emphasis added), renumbered by 1999 Cal. Stat. ch. 998,

§ 1 (now codified at CAL. Civ. CODE § 3344.1 (2011)).
173. Westfall & Landau, supra note 13, at 74.
174. McKenna, supra note 9, at 245-46. "There is nothing inherent in the notion of property

that logically requires that all of the constitutive rights in the bundle be marshaled in favor of
identity, and the law could easily provide only some, and even entirely different, protections."
Id.

175. Westfall & Landau, supra note 13, at 83-84.
176. Id. at 123.
177. Id. at 84-86.
178. Id. at 87. "Many... simply noted that descendibility had become the majority rule in

American jurisdictions and therefore should be followed." Id.
179. Id.
180. Id. at 88-89.

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2012] RECON'ING CALI'S PRE, POST & PER MORT RTs OF PUB 395

B. Theory and Policy

Since the right of publicity's haphazard emergence as a form of
intellectual property, courts and commentators have retrospectively attempted
to justify exclusive ownership of the commercial value in identity according to
traditional U.S. property theories. Although these approaches may be
appropriate in isolated circumstances, none are suitable to comprehensively
justify California's pre, post, and per mortem rights of publicity as property.

1. Labor Theory

The most common theoretical justification for granting exclusive property
rights in identity is based on John Locke's natural rights labor theory. 81
According to Locke, "When a person 'mixe[s]' his labor with a thing in its
natural state, he 'join[s] to it something that is his own' and 'thereby makes it
his property . ,,,82. Courts and commentators have frequently justified the
pre mortem right of publicity in this manner. 183 Chief Justice Bird argued in his
Lugosi dissent, "A celebrity must be considered to have invested his years of
practice and competition in a public personality which eventually may reach
marketable status. That identity ... is the fruit of his labors and is a type of
property."' 8 4 As a post mortem justification, Chief Justice Bird similarly
claimed, "If the right is descendible, the individual is able to transfer the
benefits of his labor to his immediate successors and is assured that control over
the exercise of the right can be vested in a suitable beneficiary.' 85

Although the labor theory justification for a property-based right of
publicity is initially appealing, postmodern critics of the right have found it to
be a gross oversimplification of the cultural process by which commercially
valuable identities are created.186 Celebrities derive their economic value from
their individual power "to carry and provoke meanings,' ' 87 and "the media and
the public always play a substantial part in the [meaning]-making process.'' 88

The media promote celebrities selectively, primarily through news and

181. Madow, supra note 12, at 181; McKenna, supra note 9, at 250.
182. Madow, supra note 12, at 175 n.239 (quoting JOHN LOCKE, THE SECOND TREATISE OF

GOVERNMENT 17, 19 (Thomas P. Peardon ed., Bobbs-Merrill Co. 1952) (1690)).

183. Id. at 181. "'[A] person who has 'long and laboriously nurtured the fruit of publicity
values,' who has expended 'time, effort, skill, and even money' in their creation, is
presumptively entitled to enjoy them himself.' Id. (quoting Melville Nimmer, The Right of
Publicity, 19 LAW & CONTEMP. PROBS. 203, 216 (1954)).

184. Lugosi v. Universal Pictures, 603 P.2d 425, 441 n.17 (Cal. 1979) (citing Uhlaender v.
Hendricksen, 316 F. Supp. 1277, 1282 (D. Minn. 1970)).

185. Id. at 446.
186. McKenna, supra note 9, at 252; Madow, supra note 12, at 181-82. "Fame is a

'relational' phenomenon, something that is conferred by others." Id. at 188.
187. Madow, supra note 12, at 185.
188. ld. at 193.



IND. INT'L & COMP. L. REv.

advertising, based on their need to tell dramatic, compelling, and entertaining
stories that capture and hold the public's attention. 89 In turn, the public's
reaction to or consumption of these personifications is what creates market
value in particular identities.' 90 Therefore, no matter how much labor a person
expends creating, monitoring, or shaping his or her image, the value of that
person's identity always depends on whether the audience ultimately accepts
it.' 9' Unlike with traditional labor, a celebrity cannot exclusively say, "I made
it," of his or her commercially valuable identify, and as a result, any claim of
exclusive entitlement to its associated economic value is unwarranted. 192

The labor justification for publicity rights is even less persuasive when
applied to posthumous identity protection.1 93 Whatever involvement a post
mortem personality may have had in the creation of a valuable public image,
the creative labor provided by that celebrity's heirs must have played a more
tenuous role; 194 otherwise, the celebrity'spre mortem labor-based claim would
be further undermined. Additionally, this Note argues, a non-celebrity cannot
be said to have expended time, effort, skill, and money in pursuit of the death
that prompted his or her per mortem publicity value. And because the
commercial value of aper mortem identity is necessarily created after death,195

the decedent is entirely removed from the meaning-making process.

2. Unjust Enrichment

The prevention of unjust enrichment is another common justification for
the property-based right of publicity. 196 As the inverse of the labor rationale, the
focus of unjust enrichment theory is on the defendant's "free riding" rather than
the claimant's just desserts. 197 This theory was asserted for pre mortem
publicity protection by the United States Supreme Court in Zacchini v. Scripps-
Howard Broadcasting, the Court's only decision recognizing the right of
publicity. 198 There, the Court proposed that a defendant should not get for free

189. Id. at 190. As a case study of the media's influence on public perception, Michael
Madow provides an interesting account of Albert Einstein's rise to fame in the United States-
from "mad scientist" to cultural icon. Id. at 185-88 (citing Marshall Missner, Why Einstein
Became Famous in America, 15 SoC. STUD. Sci. 267 (1985)).

190. McKenna, supra note 9, at 254.
191. Madow, supra note 12, at 193-94.
192. Id. at 196.
193. Michael Decker, Note and Recent Development, Goodbye, Norma Jean: Marilyn

Monroe and the Right of Publicity's Transformation at Death, 27 CARDOZO ARTS & ENT. L.J.

243,259 (2009).
194. Id.
195. See supra Part III.B.3.
196. McKenna, supra note 9, at 247-48; Madow, supra note 12, at 196.
197. McKenna, supra note 9, at 247-48.
198. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562,576-77 (1977). InZacchini, the

Court held that a television news broadcast of an entertainer's entire fifteen-second "human

396 [Vol. 22:2



2012] RECON'ING CALI'S PRE, POST & PER MORT RTS OF PUB 397

something of value from plaintiff for which the defendant would normally
pay.199 In his Lugosi dissent, Chief Justice Bird similarly applied unjust
enrichment theory in the post mortem context:

"There is no reason why, upon a celebrity's death, advertisers
should receive a windfall in the form of freedom to use with
impunity the name or likeness of the deceased celebrity who
may have worked his or her entire life to attain celebrity status.
The financial benefits of that labor should go to the celebrity's
heirs ... ,200

But the application of unjust enrichment theory to California's property-
based right of publicity is yet another extension of the property syllogism; "it
assumes an entitlement on behalf of the plaintiff to prove such an entitlement
should exist.",20 1 In order for a defendant's free riding to be unjust, a right of
publicity claimant must first have exclusive moral entitlement to the
commercial value of his or her personality.20 2 Without a working justification
for the initial ownership, the unjust enrichment theory fails. 20 3 Moreover, the
post mortem right of publicity effectively authorizes the heirs of the deceased
personality to free ride on that personality's economic value, regardless of the
heirs' involvement in generating that value.204 For this same reason, unjust
enrichment theory is an even more tenuous justification for per mortem
personalities, who have even less of a moral claim, if any, to the commercial
value of their identities.

3. Economic Incentives

Another policy justification asserted for pre mortem publicity rights is
that exclusive ownership provides an economic incentive for artistic creation. 205

Analogous to the primary theory behind copyright and patent law,20 6 this
argument claims thatpre mortem exclusivity incentivizes people to expend the
time, money, and energy necessary to develop valuable identities that ultimately

cannonball" performance violated the entertainer's right of publicity. Id. at 578. The court
rejected the broadcaster's First Amendment defense of newsworthiness. Id.

199. Id. at 576.
200. Lugosi v. Universal Pictures, 603 P.2d 425,446 (quoting Note, The Right ofPublicity -

Protection for Public Figures and Celebrities, 42 BROOKLYN L. REv. 527, 547 (1976)).
201. McKenna, supra note 9, at 248
202. Id.
203. Id.
204. Decker, supra note 193, at 263.
205. Madow, supra note 12, at 206.
206. U.S. CONST. art. I, § 8 ("The Congress shall have Power... To promote the Progress of

Science and the useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.").



IND. INT'L & COMP. L. REV.

produce socially beneficial works.2 °7 The United States Supreme Court also
asserted this theory in Zacchini,208 as did Chief Justice Bird, dissenting in
Lugosi:

[P]roviding legal protection for the economic value in one's
identity against unauthorized commercial exploitation creates
a powerful incentive for expending time and resources to
develop the skills or achievements prerequisite to public
recognition .... While the immediate beneficiaries are those
who establish professions or identities which are commercially
valuable, the products of their enterprise are often beneficial to
society generally.

9

Chief Justice Bird further alleged economic incentives as ajustification forpost
mortem publicity protection, t0 claiming the assurance that an individual's heirs
will continue to benefit from the investment in publicity value provides
additional encouragement for the individual to make such an investment. 21'

Critics of the economic incentives theory claim that it fails realistically to
justify exclusive ownership of pre mortem publicity value. There is little
evidence that modem celebrities would refuse to exercise their socially valuable
talents or expertise without such ownership,212 and it is equally possible that the
wealth generated by a celebrity's publicity rights disincentivizes further
exercise of that celebrity's talents.213 Further, publicity value is a collateral
source of income for most celebrities; thus, most would still be able to profit
from the activities that generate their commercial value without exclusively
exploiting their rights of publicity.214 This is unlike an author's copyright or an
inventor's patent, which is much more necessary to secure a financial benefit in
the author's or inventor's works.1 5

207. Madow, supra note 12, at 206.
208. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 576 (1977). "[Publicity]

protection provides an economic incentive for [a person] to make the investment required to
produce a performance of interest to the public. This same consideration underlies the patent
and copyright laws long enforced by this Court." Id.

209. Lugosi v. Universal Pictures, 603 P.2d 425,441 (Cal. 1979) (citing Zacchini, 433 U.S.
at 573).

210. Lugosi, 603 P.2d at 446. "[Als with copyright protection, granting protection after
death provides an increased incentive for the investment of resources in one's profession, which
may augment the value of one's right of publicity." Id.

211. Id.; see Richard B. Hoffinan, The Right of Publicity - Heirs' Right, Advertisers'
Windfall, or Courts 'Nightmare?, 31 DEPAUL L. REv. 1, 27-28 (1981); Felcher & Rubin, supra
note 157, at 1130.

212. Madow, supra note 12, at 207; McKenna, supra note 9, at 261.
213. Madow, supra note 12, at 211-12.
214. Id. at 209.
215. Id.

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Economic incentives theory is even more unrealistic in the posthumous
context. In all likelihood, the post mortem right of publicity has a
disincentivizing effect on a celebrity's heirs. Allowing heirs to inherit exclusive
property rights in a deceased celebrity's identity provides them with no
incentive to develop their own talents or identities and to offer them for
society's benefit.216 "[T]he celebrity already gathered fame and its attendant
wealth, and the [heirs] may idly enjoy its benefits. 217 Moreover, economic
incentives completely fails to justify'per mortem right of publicity protection. It
is inconceivable that an individual can be incentivized to die, especially in any
manner conceivably suitable for later commercial use. And it is unlikely that
social and moral norms would tolerate a law that rewards such a practice. The
per mortem context, therefore, allows a decedent no possibility of anticipating
or reaping the potential benefits of his commercially valuable identity.

V. IDENTITY APPROPRIATION IN GERMANY

In response to the theoretical challenges asserted above, several
commentators have recently proposed non-traditional, non-property
justifications for the U.S. right of publicity. Notably, Kantian autonomy, as
manifested through Germany's right of personality, has been suggested as an
alternative rationale for protecting both the moral and economic interests people
maintain in their identities. This Note extends this proposition as a means of
reconciling California's pre, post, and per mortem rights of publicity.

A. The Right of Personality

German identity protection is comprised of statutory rights in a person's
name and image and a judicially created general right of personality. 218 Most
judgments concerning unauthorized identity appropriation arise under the
specific statutes;21 9 however, when they prove inapplicable or insufficient, the
general right of personality serves as a "catch-all" or "gap filler" for other
appropriation of identity claims.220

1. The Right to Image

Section 22 of Germany's Law on Artistic Creations (KUG) recognizes

216. Decker, supra note 193, at 263.
217. Id.
218. 1 MCCARTHY, supra note 7, § 6:163.
219. Ellen S. Bass, Comment, A Right in Search of a Coherent Rationale- Conceptualizing

Persona in a Comparative Context: The United States Right of Publicity and German
Personality Rights, 42 U.S.F. L. REv. 799, 829 (2008).

220. Id. at 831; Susanne Bergmann, Publicity Rights in the United States and in Germany: A
Comparative Analysis, 19 Loy. L.A. ENT. L. REV. 479, 503 (1999).



IND. INT'L & COMP. L. REV.

the right to one's image.22
1 It provides that a person's picture "may only be

circulated or displayed with the consent of the [person] pictured., 222 Section 22
KUG also provides for post mortem protection, stating, "After the death of the
[person] pictured the consent of his relatives is required up to the expiration of
[ten] years. 223 A claim under 22 KUG requires that the depicted person be
recognizable from the unauthorized portrayal,224 but recognition is not limited
to the individual's face. 225 Likeness has also been found in characteristic

226features, including clothing, hairstyle, gestures, silhouette, and backside.
Further, German courts and commentators define the term "picture" broadly,
covering "all techniques and types for displaying a person. 227

2. The Right to Name

Section 12 of the German Civil Code (BGB) prohibits unauthorized use
of another person's name.228 It provides, "if the rights of the person entitled to
use a name [are] injured because of another's unauthorized use of the same
name, the person entitled to use the name has the right to claim to restrain
disturbance by the other person., 229 The right to one's name includes an
individual's surname and family name, as well as publicly known stage names,
pseudonyms, and nicknames. 230 An action arises under section 12 BGB only if
"the use of the name causes a likelihood of confusion among the public."2 31 If
there is no such likelihood of confusion, as is likely the case with most non-
celebrities, the general right to personality provides supplementary protection
for the right to name.232 Germany's Federal Supreme Court has held the right to
name to be inalienable and not descendible.233 The general right of personality,
however, provides supplementary protection in this regard as well.234

221. Kunsturhebergesetz [KUG] [Law on Artistic Creations], 1907, BuNDESGESETZBLATr,

Teil III [BGBL. III] § 22 (Ger.), translated in 1 McCARTHY, supra note 7, § 6:172.
222. Id.
223. Id. ("Relatives in terms of this Act are his surviving spouse and children, or failing

these, the parents.").
224. 1 MCCARTHY, supra note 7, § 6:164.
225. Id.
226. Bergmann, supra note 220, at 504.
227. 1 MCCARTHY, supra note 7, § 6:164.
228. BORGERLICHES GESETZBUCH [BGB] [Civil Code], 1900, REICHGESETZBLATr, Teil II

[RGBL. 11] § 12, translated in 1 MCCARTHY, supra note 7, § 6:172.
229. Id.
230. 1 MCCARTHY, supra note 7, § 6:165.
231. Id.; see Bergmann, supra note 220, at 511.
232. 1 MCCARTHY,supra note 7, § 6:165.
233. EUROPEAN TORT AND INSURANCE LAW YEARBOOK: EUROPEAN TORT LAW 2007 291-92

(Helmut Koziol & Barbara C. Steininger, eds., 2007).
234. Id.

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3. The General Right of Personality

In 1954 the Federal Supreme Court created supplemental protection for
,,23 5the rights to name and image by recognizing a "general right of personality.

This right protects against all other infringements of an individual's
personality.236 The Court has established no conclusive definition of the right;
rather, its scope is determined on a case-by-case basis. 237 Factual circumstances
in which the general right of personality has been applied include intrusion into
the private sphere; the publication of personal information; defamation;
portrayal in false light; and most importantly, for the purposes of this Note,
unauthorized commercial appropriation.238 German courts have employed the
inter-related concepts of dignity, autonomy, and self-determination in varying
degrees to justify the scope of personality rights within these particular
contexts.239

B. Theory and Policy

Unlike the U.S. right of publicity, Germany's right of personality is not
an intellectual property right; it is a personal right grounded in the country's
constitutional guarantee of human dignity. 24° Drafted amid national defeat and
humiliation following the collapse of the Third Reich in 1945,241 the German
Constitution (Basic Law) reflects a "conscious intention to elevate modem
Germany beyond the inhumanity of Naziism.... ,24' This is evident in Article
1 (1), which states emphatically, "Human dignity shall be inviolable. ' 243 Article
1(2) strengthens this guarantee by emphasizing human rights as dignity's
practical focus. 244 It provides, "The German people therefore acknowledge
inviolable and inalienable human rights as the basis of every community, of
peace and of justice in the world. 245 With human dignity at its core, the Basic
Law establishes a constitutional order for Germany in which human values "are

235. Bass, supra note 219, at 830.
236. Id.
237. Bergmann, supra note 220, at 502.
238. Huw BEVERLEY-SMITH ET AL., PRIVACY, PROPERTY AND PERSONALITY: CIVIL LAW

PERSPECTIVES ON COMMERCIAL APPROPRIATION 114-15 (2005).
239. Id. at 114-19.
240. Bass, supra note 219, at 828-29.
241. Ernst Benda, The Protection of Human Dignity (Article I ofthe Basic Law), 53 SMU L.

REv. 443,445 (2000).
242. Edward J. Eberle, Human Dignity, Privacy, and Personality in German and American

Constitutional Law, 1997 UTAH L. REV. 963, 971 (1997).
243. GRUNDGESETZ FOR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC

LAW], May 23, 1949, BGB1. I, art. 1(1) (Ger), translated in EBERLE, DIGNITY AND LIBERTY:
CONSTITUTIONAL VISIONS IN GERMANY AND THE UNITED STATES, app. B (2002).

244. Eberle, supra note 242, at 971.
245. GRUNDGESETZ [GG] [BASIC LAW], May 23, 1949, BGBI. I, art. 1(2) (Ger), translated in

EBERLE, supra note 243, app. B.



IND. INT'L & COMP. L. REv.

not to be sacrificed for the exigencies of the day," as had occurred under the
Nazi regime.246

"The concept of human dignity in the Basic Law reflects the influence of
.. Christian natural law, Kantian moral philosophy, and more individualistic,

or existential, theories of personal autonomy and self-determination., 247

Although its drafters did not intend for the Basic Law to be strictly associated
with any one of these philosophies, 248 Germany's Federal Constitutional Court
has mainly followed Immanuel Kant's theory of moral autonomy in interpreting
dignity's meaning.249

1. Kantian Autonomy

Kantian moral and political philosophy is founded on Kant's conception
of human dignity.25 0 Kant viewed dignity as deriving from the innate freedom
required to exercise human reason in pursuit of autonomy, 251 with moral
autonomy being "the highest goal of organized society. 252 Kantian autonomy,
therefore, is considered the "universal" and "unconditional" human capacity for
moral legislation. 253 It is self-governance, "free from moral determinism, and
not motivated by sensuous desires. 25 4 Simplified, moral autonomy reflects the
process of choosing that which is good because it is good.255

Under this model, people can self-legislate only if they are free from
external constraints.256 Therefore, individual liberty must presuppose
autonomy.257 According to Kant, liberty is the "'one sole and original right that
belongs to every human being by virtue of his humanity,' and it comprises 'the
attribute of a human being's being his own master.' ' 258 Outside interference
with one's person necessarily violates this innate right, and as such, autonomy

246. EBERLE, SUpra note 243, at 19; see Eberle, supra note 242, at 967.
247. EBERLE, supra note 243, at 42-43. "Under Christian natural law theories, dignity is a gift

from God and, therefore, an inalienable aspect of humanity, beyond human tampering." Id. at
43. "[The third] theory seems the one most in accord with American views, notably present in
free-speech law." Id.

248. Id. at 42.
249. Id. at 43.
250. IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE: PART I OF THE

METAPHYSICS OF MORALS, ix (John Ladd trans. 1965) (1797).
251. Haemmerli, supra note 13, at 415-16.
252. McKenna, supra note 9, at 276 n.217.
253. Kim Treiger-Bar-Am, Kant on Copyright: Rights of Transformative Authorship, 25

CARDozo ARTS & ENT. L.J. 1059, 1097 (2008).
254. Id. at 1095.
255. H.J. PATON, THE MORAL LAW 60 (1947).
256. KANT, supra note 250, xi; Haemmerli, supra note 13, at 414-15. Kant refers to liberty,

freedom from external constraints, as "negative freedom," and autonomy, freedom from internal
constraints, as "positive freedom." Id.

257. KANT, supra note 250, xi.
258. Haemmerli, supra note 13, at 414 (quoting KANT, supra note 250, at 44).

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requires that humans be treated "always as ends in themselves [and] never as
means."

259

2. Moral Self-Determination

Further rooted in Kantian conceptions of dignity and autonomy is Article
2(1) of the Basic Law, which provides, "Everyone shall have the right to the
free development of his personality .. . .26o This constitutional principle
facilitates the full development within society of everyone's individual
capabilities, allowing all people to realize their inner persons.261 For Kant, the
development of the inner self is a right of moral-self determination, as is
illustrated by Kant's view of authorial expression.262

Kant considered an author's expression to be "an action of the will," a
continuation of the author's inner self.2 63 As such, a human being is considered
to have a "'natural purposiveness' . . . to fulfill the speaker's capacity to
'communicate his thoughts.'264 An author's right in his communicative acts is
therefore an innate right of self-ownership.265 In this sense, only the author may
decide to disclose his or her work and in what form such disclosure will
occur.266 The dissemination of an author's words without consent forces the
author to speak against his or her will and is a violation of the author's freedom
and autonomy.

267

3. Economic Self-Determination

Kant's conception of authorial rights has found expression in German
268Copyright Law. German copyright protects both an author's personal interest

in his work and his commercial interest in the exploitation of that work.26 9 As a

259. Eberle, supra note 242, at 974.
260. GRUNDGESETZ [GG] [BASIC LAw], May 23, 1949, BGB1. I, art. 2(1) (Ger), translated in

EBERLE, supra note 243, at app. B.
261. Edward J. Eberle, The German Idea of Freedom, 10 OR. REV. INT'LL. 1,23 (2008).
262. Treiger-Bar-Am, supra note 253, at 1073.
263. Bass, supra note 219, at 836.
264. Treiger-Bar-Am, supra note 253, at 1076 (quoting IMMANUEL KANT, THE METAPHYSICS

OF MORALS 182 (Mary Gregor ed., 1996) (1797)).
265. Bass, supra note 219, at 836.
266. Neil Netanel, Copyright Alienability Restrictions and the Enhancement of Author

Autonomy: A Normative Evaluation, 24 RUTGERS L.J. 347, 375 (1993).

267. Id. at 374-75; Bass, supra note 219, at 836.
268. Netanel, supra note 266, at 378-79. Kant's conception of author's rights is reflected in

the monist school of copyright theory, which was adopted by the German Copyright Act. Id; see
generally Urheberrechtsgesetz [UrhG] [Copyright Law], 1965, BuNDESGESETZBLATr, Teil I
[BGBL. 1]. The monist theory views authorial rights as a "fundamentally personal right to
determine when, in what form, and for what purpose his creative work is to be communicated to
the public." Bass, supra note 219, at 833.

269. Netanel, supra note 266, at 379.



4ND. INT'L & COMP. L. REv.

personality right, copyright is part of an author's ownership of the inner-self,
and "economic interests are necessarily subsumed within [this] personal
sphere. 270 This Note refers to the latter principle as "economic self-
determination."

27'

Significantly, for the purposes of this Note, German courts have
interpreted 22 KUG, the right to image, in accordance with these German
copyright principles. 272 "Just as the author has the inherent right to determine
the communication of the author's thoughts to the public, the individual has the
inherent right to determine whether and how his image will be displayed in the
world., 273 In this light, 22 KUG constitutes a hybrid right, protecting both the
moral and the economic interests in a person's image.274

C. Commercial Appropriation Cases

The suitability of Kantian autonomy as an alternative, reconciliatory
approach to California's property-based rights of publicity is evident in
Germany's application of the right of personality in commercial appropriation
cases. There, German courts have generalized the principle of economic self-
determination to extend 22 KUG's hybrid protection to the general right of
personality.2 75 As is illustrated by the case law below, this broad application
allows for an assignable and descendible commercial interest in a person's
identity, similar to the U.S. right of publicity. It also affords posthumous
protection of a person's moral interests against unauthorized commercial
appropriation, comparable to the privacy motives of AB 585.

1. Assignable Economic Interests

In the case of Nena, a merchandising company brought suit to recover a
licensing fee from a manufacturer of products featuring the likeness of a
German singer performing under the stage name, "Nena.' 2 76 The merchandising

270. Bass, supra note 219, at 833.
271. See Alice Farmer, Towards a Meaningful Rebirth of Economic Self-Determination:

Human Rights Realization in Resource-Rich Countries, 39 N.Y.U. J. INT'L L. & POL. 417,418
(2006) (defining "economic self-determination" politically as "a people's capacity to dispose
freely of natural resources in accordance with democratically-taken decisions). See infra note
276.

272. Bass, supra note 219, at 833.
273. Id. at 836.
274. Id. at 833.
275. BEVERLY-SMrrtH ET AL., supra note 238, at 118. "It is well established that ... the

general personality right grants a right of self-determination concerning the commercial use of
all aspects of personality." Id.

276. Bundesgerichtshof [BGH] [Federal Court of Justice] October 14, 1986, VI ZR 10/86
(Nena), translated in 19 INT'L REV. INDUS. PROP. & COPYRIGHT L. 269 (1988). "The plaintiff

claims that the licensing fees range between DM 5,000 and DM 20,000." Id. at 270.

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company had an exclusive license to use all of Nena's "commercially
exploitable rights, including the right to her own likeness, 277 which the
manufacturer did not have consent to use.278 In its defense, the manufacturer
claimed that, "as an extension of the general personality right," the right to
image is inalienable. 279 The Federal Supreme Court agreed, but concluded that
the merchandising company was entitled to recover a fee regardless.2 80 The
Court stated,

[T]he plaintiff's claim is not... defeated by the fact that the
contract.. . due to the nonassignability of the right in one's
own likeness, did not confer rights upon the plaintiff, which
the plaintiff could claim against third parties in its own name.
At issue here is not the right to an injunction order but the
right to recover a fee which plaintiff demands for the
commercial exploitation of the vocalist Nena's likeness. The
decision whether to award this recovery does not require a
decision on the controversial question of whether or not the
right to one's own likeness, due to its legal nature as a general
.personality right, is transferable. The defendant's use of
Nena's likeness gave rise to the plaintiff's right to recover the
usual fee for permission to utilize the likeness.., and does not
require that Nena's right in her own likeness had been
transferred to the plaintiff.2 8'

2. Descendible Economic Interests

In the case of Marlene Dietrich, a theater production company authorized
the use of Marlene Dietrich's name and image in conjunction with the sale of
automobiles, cosmetics, and other merchandise to promote the company's

282
musical on the life of the late actress. Dietrich's sole heir sought an
injunction against and compensation for this commercial use, claiming
posthumous infringement of Marlene's personality rights.283 The company
argued that posthumous personality rights protected only the non-material

277. Id. at 260-70.
278. Id.
279. Id.
280. Id. at 271.
281. Id.
282. Bundesgerichtshof (BGH] [Federal Court of Justice] December 1, 1999, 1 ZP 49/97

(Marlene Dietrich), translated at http://www.utexas.edu/law/academics/centers/
transnational/work-new/german/case.php?id=726.

283. Id.



IND. INT'L & COMP. L. REV.

interests of the deceased, but the Federal Supreme Court disagreed.284 Based on
the recognized ability to exploit one's personality during life, the Court
concluded that the inheritability of the elements of the right of personality
having financial value was necessary to protect those same interests after
death:

285

An effective posthumous protection of the elements of the
right of personality which are of financial value is only
guaranteed if the heir can step into the role of the holder of the
right of personality and can, in defending the presumed
interests of the deceased, proceed in the same way as that
person could have done against an unauthorised
exploitation.286

3. Posthumous Moral Interests

In the case of Heinz Erhardt, the son of a well-known comedian sought
an injunction against, not compensation for, the posthumous use of his
deceased father's voice imitation in a radio advertisement.287 The Hamburg
Court of Appeals (OLG Hamburg) held that "an artist's personality could not
be subjected to commercial exploitation immediately after his death" because of
the deceased's "claim to dignity" and "the necessity to reserve the commercial
exploitation to the artist's heirs., 288 The court emphasized that, because the
general right of personality would have protected Erhardt's likeness during life,
it would be constitutionally unacceptable if his personality could be freely
imitated immediately after his death.289 This holds true "regardless of whether
the imitation compromises the dignity and integrity of a person or their heir's
right of exploitation. 29 °

VI. RECOMMENDATIONS

This Note advocates California's adoption of a personality rights regime
as a means of reconciling the compounding disparities among the state's current
pre, post, and per mortem right of publicity statutes. The German cases

284. Id.
285. Id.
286. Id.
287. OBERLANDESGERICHT HAMBURG [OLG HAMBURG] [Hamburg Court of Appeals] May 8,

1989, 3 W 45/89 (Heinz Erhardt), translated in 21 INT'LREV. INDus. PROP. & COPYRIGHT L. 881
(1990).

288. Id. at 882.
289. Id. at 881.
290. Id.

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discussed above illustrate how the application of economic self-determination
can serve as a comprehensive theoretical justification for California's statutory
rights of publicity, which have proven incompatible with its property-based
regime.291 Economic self-determination accounts for the alienability and
descendibility characteristics that have come to define California'spre andpost
mortem rights of publicity,292 while simultaneously providing for the personal,
posthumous interests served by the state's pre mortem protection. 29

' Thus,
individuals in California would be able to recover profits for the unauthorized
use of their commercially valuable identities, but commercial value would not
be a pre-requisite for all posthumous protection.294 Moreover, economic self-
determination rationalizes the prevailing principle that all people have a right of
publicity as an innate characteristic of personhood,295 which better addresses
the critiques of granting exclusive ownership in the cultural product of fame.296

Admittedly, the Kantian foundation of Germany's right of personality
does not exactly square-up with the law of the United States.297 Although both
U.S. and German law rest on the duality of liberty and autonomy,298 in the
United States, there is no designated moral value organizing this self-
governance.299 "Americans [instead] see themselves as autonomous people who
themselves determine the norms and values that infuse the social order., 300 But
despite this disparity, personality ideals are not entirely unrecognized in the
United States, 30 1 especially in California.

Over the last thirty years, moral rights302 legislation has emerged in the
United States as a form of limited personality protection.30 3 As historically
found in European law, this bundle of rights protects an artist's interest in his or
her work as an expression of the artist's personality and the foundation of his or
her artistic reputation. 30 4 In order to protect this reputation, an artist is typically

291. See supra Parts III, IV.
292. See supra Parts V.C. 1, 2.
293. See supra Part V.C.3.
294. See supra Part III.A.
295. See id.
296. See supra Part IV.B.
297. EBERLE, supra note 243, at 127. German autonomy law is focused on dignity, not

privacy. Id.
298. Id. at 131.
299. Id. at 47-48, 131. There is no reference to dignity in the U.S. Constitution. Id. at 47.
300. Id. at 48.
301. Id. at 47. "Instead, the idea of dignity and personality must be implied from the promise

of liberty in the due process clause or other textual authority." Id. "The self-realization
component to dignity is well represented in American law, especially in substantive due process
and free speech law." Id. at 46.

302. "The most popular name identifying this bundle of personal rights is the French term
droit moral, loosely translated as 'moral rights."' John G. Petrovich, Artists' Statutory Droit
Moral in California: A Critical Appraisal, 15 LoY. L.A. ENT. L. Rev. 29, 29 (1981).

303. See CAL. Civ. CODE § 987 (2010).
304. Petrovich, supra note 302, at 29.



IND. INT'L & COMP. L. REV.

granted the rights to creation, disclosure, paternity, and integrity in his or her
work.

305

In 1981 the California legislature enacted the California Art Preservation
Act,3°6 statutorily recognizing the moral rights of artists in certain visual arts. 30 7

Notably, subsection (a) of the Act states, "The Legislature hereby finds and
declares that the physical alteration or destruction of fine art, which is an
expression of the artist's personality, is detrimental to the artist's reputation,
and artists therefore have an interest in protecting their works of fine art against
any alteration or destruction., 30 8 Although the Act only provides for the rights
of paternity309 and integrity,310 it is speculated that the right of disclosure was

311omitted due to legislative concerns over federal copyright preemption.
An infringement of an artist's moral rights under the Act entitles the artist

to injunctive relief, actual and punitive damages, reasonable attorneys' and
expert witness fees, and "any other relief which the court deems proper., 312

More importantly, for the purposes of this Note, the Act provides for
posthumous protection of these personal interests.313 Subsection (g) of the Act
states, "The rights and duties created under this section: (1) Shall, with respect
to the artist, or if any artist is deceased, his or her heir, beneficiary, devisee, or
personal representative, exist until the 50th anniversary of the death of the
artist.,,

314

This Note does not suggest that the proposed personality-based identity
protection is capable of integration with California's moral rights law. Rather,
this law illustrates California's recognition of personality rights as a means of
protecting a person's innate interest in the moral and economic self-
determination of his or her personality-both during life and after death.

305. Id.
306. 1979 Cal. Stat. ch. 409, § 1.
307. Petrovich, supra note 302, at 30 ("California [was] the first state to provide specific

statutory protection for the moral rights of visual artists.").
308. CAL. CIV. CODE § 987(a) (2010) (emphasis added). "'Fine art' means an original

painting, sculpture, or drawing, or an original work of art in glass, of recognized quality, but
shall not include work prepared under contract for commercial use by its purchaser." Id. §
987(b)(2).

309. Id. § 987(d) ("The artist shall retain at all times the right to claim authorship, or, for a
just and valid reason, to disclaim authorship of his or her work of fine art.").

310. Id. § 987(c)(1) ("No person, except an artist who owns and possesses a work of fine art
which the artist has created, shall intentionally commit, or authorize the intentional commission
of, any physical defacement, mutilation, alteration, or destruction of a work of fine art.").
311. Peter H. Karlen, Moral Rights in California, 19 SAN DIEGO L. REv. 675, 685 (1982).
312. CAL. CIV. CODE § 987(e) (2010).

313. Id. § 987(g).
314. Id.

408 [Vol. 22:2



2012] RECON'ING CALI'S PRE, POST & PER MORT RTS OF PUB 409

VII. CONCLUSION

California's per mortem right of publicity compromises the state's pre-
existing publicity-as-property statutory regime. AB 585 was motivated by the
emotional concems found at the heart of privacy law, and its ability to address
the economic injuries that define publicity rights is incompatible with the
commercial value principles of California's pre and post mortem statutes.
Moreover, the state's pre mortem protection overextends the theoretical
justifications commonly purported for the state's property-based publicity
rights. Germany's right of personality, however, presents a comparative model
for reconciling California's incompatible right of publicity statutes. As justified
by the Kantian-inspired theory of economic self-determination, the right of
personality accounts for an assignable and descendible identity without
requiring economic value or emotional injury. In this regard, California's
protection against commercial appropriation could rightfully be considered an
innate right of personhood.