Heirs of dead stars won a key battle in the fight against unauthorized use of their late relatives’ images after the California state senate recently approved a bill that, if passed, would increase the protective powers heirs have over the names and likenesses of deceased family members.
Authored by Senate President Pro Tem John L. Burton (D-San Francisco), the bill-known as SB-209-passed the Senate and was sent to the Assembly on a 30-1 vote on April 8. The bill was sponsored by Robyn Astaire, widow of dancer/movie star Fred Astaire, and co-sponsored by the Screen Actors Guild (SAG). The bill is now awaiting action in the Assembly Judiciary Committee; as of yet, no hearing date has been set.
Current California law (specifically, civil code section 990, which is a "right of publicity" statute for dead personalities) requires permission from a celebrity’s heirs to use the famous person’s name or image in a commercial product. However, there are exceptions for plays, books, magazines, films, music, works of art, radio and television programs and material that has a political or news value. If passed, SB-209 would eliminate these exceptions; commercial usage of dead celebs would then be permitted to the extent allowed by the First Amendment.
The current California law protects deceased individuals from unauthorized commercial usage for 50 years after death; the Burton bill would extend this period of protection to 70 years and would also allow heirs to sue in California even if the celebrity didn’t reside there at the time of death. No federal law exists regarding right of publicity; certain states, such as New York, don’t recognize a decedent’s right to control publicity at all.
"Loopholes in existing law undercut a family’s ability to say how images of their loved ones will or won’t be used," said Burton in a released statement. "Pictures of Fred Astaire dancing that couldn’t be put on a t-shirt without permission are fair game if they’re on video. Pictures of River Phoenix that couldn’t be sold individually can be sold if they’re bound as a magazine-and without SB-209, there’s nothing the family could do about it."
Robyn Astaire took her case to the Legislature after losing a long legal fight in the U.S. 9th Circuit Court of Appeals. She took up the cause in ’89, after New York-based Best Film & Video released a how-to video on dirty dancing featuring 90 seconds of movie clips of her late husband without his estate’s permission. In Oct. ’98, the U.S. Supreme Court rejected her appeal, ruling that the use of Astaire’s image for instructional purposes (as opposed to strictly commercial ones) was covered under the film exception and was legal.
SAG president Richard Masur has been reported as arguing that digital technology, and its ability to morph images of dead celebs with living ones on film, necessitated some new legal controls. SAG spokesman Rafe Greenlee told SHOOT, "We were interested in [SB-209] because the right of publicity is one of the few means by which our members can protect their images in this new digital age; that’s one of the reasons we’re also fighting for a federal right of publicity."
Among those who testified in support of SB-209 were Masur, Robyn Astaire and Bela Lugosi Jr., who has been involved in litigation that helped lay the groundwork for the bill (he controls the images of his late famous father and of the Three Stooges). A partial list of 80-plus celebrities who endorse the bill includes Arnold Schwarzenegger, Tom Cruise, Anjelica Huston, Michael Douglas and Rod Steiger.
"All artists’ families are asking for," said Burton in a release from his office, "is the same right the celebrities have when they’re alive, the right to say yes or no. California is the nation’s entertainment leader. I believe we should also be the leader in protecting the rights of the artists who provide that entertainment."
According to published reports, opposition to the SB-209 bill includes several motion picture studios, including Universal Studios, and some First Amendment activists, who fear that the bill would stifle creative expression.
The debate over using dead celebrities’ images has become especially thorny given the recent advances in digital technology that can recreate performers (see SHOOT, 4/17/98, p.1). Technology now permits yesteryear ‘s stars to be put in contemporary settings, as was Lucille Ball, who appeared to be browsing in a Service Merchandise store in several ’96 spots created by New York-based agency/production company Shelly Palmer Productions.
Through computer artistry, the mouth and jaw movements of Ed Sullivan were altered for a ’97 Mercedes-Benz spot out of New York-based Lowe & Partners/ SMS, so that he appeared to be introducing the M-Class sport utility vehicle. Among the dead celeb ads gaining the most notoriety were those featuring Fred Astaire for Dirt Devil; Robyn Astaire gave her permission to the client and Cleveland-based agency Meldrum & Fewsmith to create a package of spots that aired in ’97 and showed the late icon dancing with Dirt Devil products.
