Your recipients will receive an email with this envelope shortly and will be able to access it on trellis. You can always see your envelopes by clicking the Inbox on the top right hand corner.
Your subscription has successfully been upgraded.
The publicity rights to a “deceased personality’s” name, voice, signature, photograph, or likeness are “property rights” that are freely transferrable, in whole or in part, by contract or by means of a testamentary instrument of the deceased personality effective on the date of his or her death. Civ. Code § 3344.1(b). Where the deceased personality entered into a contract during his or her lifetime by which the deceased personality assigned the rights, in whole or in part, to use his or her name, voice, signature, photograph, or likeness, the contract shall remain valid and enforceable notwithstanding any testamentary instrument. Id.
In the absence of a contract or testamentary instrument transferring the publicity rights to a deceased personality’s name, voice, signature, photograph, or likeness, all such rights shall belong to the following person or persons:
The term “deceased personality” is defined to mean:
“[A]ny natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death, or because of his or her death, whether or not during the lifetime of that natural person the person used his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods, or services.”
The unauthorized use of the publicity rights of a deceased personality’s name, voice, signature, photograph, or likeness shall entitle the owner of the publicity rights to damages. Civil Code § 3344.1(a)(1) provides:
“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 [herein] shall be liable for any damages sustained by the person or persons injured as a result thereof.... Punitive damages may also be awarded to the injured party or parties. The prevailing party or parties in any action under this section shall also be entitled to attorney’s fees and costs.”
“The statute provides a number of exemptions from the requirement of consent to use. Thus a use ‘in connection with any news, public affairs, or sports broadcast or account, or any political campaign’ does not require consent.... Use in a ‘commercial medium’ does not require consent solely because the material is commercially sponsored or contains... paid advertising. ‘Rather it shall be a question of fact whether or not the use... was so directly connected with’ the sponsorship or advertising that it requires consent.... Finally [§ 990] provides that ‘[a] play, book, magazine, newspaper, musical composition, film, radio or television program’..., work of ‘political or newsworthy value‘..., ‘[s]ingle and original works of fine art’..., ‘or [a]n advertisement or commercial announcement’ for the above works... are all exempt from the provisions of the statute.” Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal. 4th 387, 393
“[T]he right [of privacy] does not survive but dies with the person.” Hendrickson v. Cal. Newspapers, Inc. (1975) 48 Cal.App.3d 59, 62; Flynn v. Higham (1983) 149 Cal.App.3d 677, 683. Furthermore, survivors generally do not have a right to privacy in their deceased relative’s activities. See Hendrickson v. Cal. Newspapers, Inc., supra, 48 Cal.App.3d at 62; Flynn v. Higham, supra, 149 Cal.App.3d at 683.
Nevertheless, California courts have recognized a narrow exception for “death images,” under which the family members of a decedent do have a privacy interest in the death images of their deceased relative. Catsouras v. Dept. of California Highway Patrol (2010) 181 Cal.App.4th 856, 874 (discussing “impact of death images on the living” and concluding, under persuasive authority, “family members do have their own privacy rights in death images” of a loved one).
“A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity. Such norms create a threshold reasonable expectation of privacy in the data at issue.” Hill v. Nat’l Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.
There is a reasonable expectation of privacy in private financial information. Cobb v. Super. Ct. (1979) 99 Cal.App.3d 543, 550.
“In weighing the privacy interests of the third party, the court should consider the nature of the information sought, its inherent intrusiveness, and any specific showing of a need for privacy, including any specific harm that disclosure of the information might cause. For example, the third party may demonstrate that public disclosure of confidential information would damage its competitive position or embarrass persons not involved in the litigation. Upon request, the court should review the information in camera before production to assess its value to the requesting spouse and the harm disclosure might cause to the third party. Any discovery order should be carefully tailored to protect the interests of the requesting spouse in obtaining a fair resolution of the issues while not unnecessarily invading the privacy of the third party. Also upon request, the court should consider appropriate protective orders.” Schnabel v. Super. Ct. (1993) 5 Cal.4th 704, 714.
Although the right to privacy does not survive the death of a person, (Flynn v. Higham (1983) 149 Cal.App.3d 677, 683) a decedent’s patient-physician and psychtherapist-patient privileges, codified at Evid. Code §§ 990 et seq. and 1010 et seq. do survive his death. Rittenhouse v. Super. Ct. (1991) 235 Cal.App.3d 1584.
The right of privacy is often invoked in the context of commercial speech when the appropriation of a celebrity likeness creates a false or misleading impression that the celebrity is endorsing the product. Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal. 4th 387, 396. There must be evidence of a direct connection between the alleged use and the commercial purpose. Cross v. Facebook, Inc. (2017) 14 Cal. App. 5th 190, 208.
P's decedent was killed on a motorcycle along Victoria Avenue. Ds move to change "venue" another county (pp. 1, 4) , or to Simi Valley (pp.2, 4), arguing that media reports, published newspaper articles and "blog" postings have "canonized" P's decedent and "demonized" D driver. Ds claim that they cannot have a fair trial in Ventura. Ds assert that it is "not likely Simi Valley jurors read the Ventura Star."
SCOTT PATRICK LEE VS. ROBERT FLORINE
56-2010-00373683-CU-PP-VTA
Oct 13, 2010
Ventura County, CA
(See also 5 Witkin, Summary 10th Torts § 653 (2005)—no relational right to privacy claims of decedent.) None of these cases considered the issue in the context of the case at bench: appointing a successor in interest to carry on a deceased plaintiff’s privacy claims regarding conduct occurring before her death. Therefore, they are inapposite. Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure section 1019.5(a), no further written order is necessary.
ROSE V. HEALTHCOMP, INC.
15CECG00163
Sep 26, 2016
Fresno County, CA
Personal Injury/ Tort
other
See Civil Code § 3344.1(b) ("The [publicity] rights ... shall be deemed to have existed at the time of death of any deceased personality who died prior to January 1, 1985, and ... shall vest in the persons entitled to these property rights under the testamentary instrument of the deceased personality effective as of the date of his or her death.")
HUBERT HANSEN INTELLECTUAL PROPERTY TRUST VS THE COCA COLA COMPANY
37-2016-00021046-CU-MC-CTL
Feb 14, 2019
San Diego County, CA
Other
Intellectual Property
Ninth Cause of Action for Misappropriation of Publicity Rights Defendants assert that Plaintiff cannot establish a cause of action for statutory misappropriation of publicity rights because “television programs” are exempt from claims for misappropriation of publicity of a deceased person. (Civ. Code § 3344.1(a)(2).) Defendants also contend that Plaintiff cannot assert a common law claim for misappropriation because there is no common law right of publicity for a deceased person.
MOCTESUMA ESPARZA VS NETFLIX, INC., A DELAWARE CORPORATION, ET AL.
20STCV42813
Aug 19, 2021
Los Angeles County, CA
Personal Injury/ Tort
Fraud
Ninth Cause of Action for Misappropriation of Publicity Rights Defendants assert that Plaintiff cannot establish a cause of action for statutory misappropriation of publicity rights because television programs are exempt from claims for misappropriation of publicity of a deceased person. (Civ. Code § 3344.1(a)(2).) Defendants also contend Plaintiff cannot assert a common law claim for misappropriation because there is no common law right of publicity for a deceased person.
MOCTESUMA ESPARZA VS NETFLIX, INC., A DELAWARE CORPORATION, ET AL.
20STCV42813
Dec 17, 2021
Los Angeles County, CA
John and Terri Swarthout individually and on behalf of their deceased son Taylor Swarthout’s estate (collectively Plaintiffs) bring this action against Forward Air Solutions, Inc. (FASI), Forward Air, Inc. (FAI) and others for the wrongful death of Taylor in a motor vehicle accident that occurred on Highway 101 in Paso Robles. Taylor and three others were killed when a vehicle they were riding in collided with a tractor trailer rig that had turned left to cross the southbound lanes of Highway 101.
John Swarthout, et al. v. Forward Air Solutions, Inc. et al. 15CVP0194
Sep 19, 2017
San Luis Obispo County, CA
Background This legal malpractice action arises out of now deceased attorney Judith Shapiros representation of Plaintiffs in Knutsson, et al. v. KTLA, et al. Los Angeles Superior Court Case No. BC500792 (the Underlying Action). There, Plaintiffs brought right of publicity claims against KTLA, Local TV, and other television stations. Initially, Plaintiffs defeated Local TVs motion for summary judgment of the right of publicity claims.
KURT KNUTSSON, ET AL. VS JUDITH SALKOW SHAPIRO, ET AL.
18STCV04752
Sep 26, 2023
Los Angeles County, CA
Background: On October 24, 2014, plaintiff David Weisman brought this action against defendant Michael Post to determine that defendant had no publicity rights under Civil Code § 3344.1 because Edie Sedgwick was not a “deceased personality” as defined in that statute. On August 26, 2019, the court entered judgment after a court trial in favor of plaintiff. The court specifically ordered and decreed that plaintiff was the prevailing party entitled to costs of suit.
DAVID WEISMAN VS MICHAEL POST
1469303
Nov 22, 2019
Santa Barbara County, CA
On March 9, 1998, decedent visited Dr. Patrick Walsh, who conducted a lung biopsy and diagnosed decedent with Chronic Beryllium Disease, or CBD. SS ¶ 10. Dr. Walsh testified that he told decedent that decedent should look into the possibility of exposure to beryllium at his work and that he should avoid all contact with beryllium. DAOE Exh. 5, 26:15-19, 27:10-17. When decedent met with Dr. Walsh again in February 1999, Dr. Walsh again emphasized that decedent should avoid all contact with beryllium.
RAFAEL A. GODOY ET AL VS THE ARGEN CORPORATION ET AL
BC578085
Jul 27, 2018
Los Angeles County, CA
The nature and scope of the relationship between Plaintiffs and decedent Helen is arguably relevant; at least as to the issue of nature and scope of the damages proximately caused. The court denies the Motion as to those portions of paragraphs 7, 9, and 17. With some notable exceptions, the amount of money damages sought by a plaintiff must be stated in the complaint. CCP §425.10(a)(2).
GALLICK VS SIMI VALLEY
56-2015-00468462-CU-BC-VTA
Nov 09, 2015
Ventura County, CA
The press release appears to be used for publicity or promotional use intended to elicit donations from readers. Therefore, the press release appears to be commercial speech. Moving Parties contend that even if the press release constitutes commercial speech, it falls into the public affairs exception to Civ. Code §3344.
AUTRY VS GENTILE
MCC1700531
Sep 27, 2019
Riverside County, CA
Therefore, the misuse of the publicity was unlawful and deceptive. Because Moving Parties failed to establish that they did not violate Civ. Code §3344 and 3344.1, as stated above, there are triable issues as to whether the violated the UCL.
AUTRY VS GENTILE
MCC1700531
Sep 12, 2019
Riverside County, CA
Background This legal malpractice action arises out of now deceased attorney Judith Shapiros representation of Plaintiffs in Knutsson, et al. v. KTLA, et al. Los Angeles Superior Court Case No. BC500792 (the Underlying Action). There, Plaintiffs brought right of publicity claims against KTLA, Local TV, and other television stations. Initially, Plaintiffs defeated Local TVs motion for summary judgment of the right of publicity claims.
KURT KNUTSSON, ET AL. VS JUDITH SALKOW SHAPIRO, ET AL.
18STCV04752
Dec 14, 2023
Los Angeles County, CA
Some of the publicity, whether in the media or on the Internet, appears to describe the effect of the accident on plaintiff Pedeferri, and this coverage clearly affects the interests of all defendants. Yet, "perfection is not required; some knowledge of the case on the part of some jurors is often unavoidable." (People v. Williams, supra, 48 Cal.3d, at p. 1129.)
ANTHONY PEDEFERRI VS. JEREMY JAMES WHITE
56-2009-00357429-CU-PO-VTA
Aug 26, 2010
Ventura County, CA
Clark is now deceased and can no longer explain the alleged encounter with plaintiff in 1985. Ms. Clark died on May 24, 2011, as reflected in the documents attached to the complaint. (Comp., Attach. 1E.) Even if Ms. Clark were still alive, her memory of the events would likely have faded over the three decades since she made the alleged �gift.� See, Garrity v.
LORI SELLERS VS HUGUETTE CLARK ET AL
1439670
Apr 29, 2014
Santa Barbara County, CA
Defendants argue that “Plaintiff’s Prayer for Punitive Damages should be stricken, as the FAC is devoid of sufficient facts to establish that LMB or Wu ever acted with any form of malice, fraud or oppression toward Decedent [sic].” (Motion, p. 8:17-19.)
JEROME OGDEN VS LIUMEIBANG ORGANIZATION, A CALIFORNIA CORPORATION, ET AL.
19STCV39186
Aug 20, 2020
Los Angeles County, CA
Personal Injury/ Tort
other
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiffs Kurt Knuttson and Woojivas, Inc. bring this suit against the law corporation of their deceased former lawyer, Judith Salkow Shapiro, APC, for legal malpractice and fraud in the handling of an underlying employment and right of publicity action against KTLA, Local TV, and other television stations.
KURT KNUTSSON, ET AL. VS JUDITH SALKOW SHAPIRO, ET AL.
18STCV04752
Jun 16, 2022
Los Angeles County, CA
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiffs Kurt Knuttson and Woojivas, Inc. bring this suit against the law corporation of their deceased former lawyer, Judith Salkow Shapiro, APC, for legal malpractice and fraud in the handling of an underlying employment and right of publicity action against KTLA, Local TV, and other television stations.
KURT KNUTSSON, ET AL. VS JUDITH SALKOW SHAPIRO, ET AL.
18STCV04752
Aug 11, 2022
Los Angeles County, CA
Personal security in a society saturated daily with publicity about its members requires protection not only from governmental intrusion, but some basic bulwark of defense against private commercial enterprises which derive profits from gathering and disseminating information. Miller, 187 Cal.App.3d at 1487-1488.
I G ET AL VS LEEWAY SCHOOL FOR EDUCATIONAL THERAPY ET AL
BC632325
Mar 17, 2017
Los Angeles County, CA
Salgado argues that he owes no fiduciary duty to JRE because he never contracted with JRE not to disclose information about Rivera, and Rivera, deceased, has no privacy rights. Salgado’s arguments fail. The NDA was made between JRE and Salgado: “AGREEMENT entered into the 17th day of September 2013, by and between Jenni Rivera Enterprise, Inc. ... and Pete Salgado ....”
JENNI RIVERA ENTERPRISES LLC VS PETE SALGADO ET AL
BC633764
Dec 19, 2016
Los Angeles County, CA
In the Complaint, Plaintiff alleges two causes of action for: (1) right of publicity under Civil Code, § 3344 and (2) common law right of publicity. On October 12, 2018, MJI and Javahery, individually and on behalf of his minor child Charlotte Javahery filed a Cross-Complaint against Evan Brenner, individually and as guardian ad litem for Mika Jaymes Brenner. (Cross-Defendants) The Cross-Complaint alleges the following causes of action: (1) violation of 15 U.S.C. § 8131, (2) violation of 15 U.S.C.
EVAN ISRAEL BRENNER VS MIKA JAYMES INC ET AL
BC690971
Dec 10, 2021
Los Angeles County, CA
Defendants Estate of Michael Klein, Robert Klein, Executor of the Estate of Michael Klein deceased, and Robert Klein, Trustee of the Michael Klein Adminstrative Trust are represented by Peter Ezzell, Nancy Lucas, Gary Hill and Timothy Trager. d. Defendant Islas Secas S.A. is represented by Gary Hill and Timothy Trager. (Note: I customarily publish the above listing (a-d only) by projecting it on my overhead projector so the potential jurors can visualize the names of counsel and their clients.
KIM KLEIN ET AL VS ROBERT KLEIN ESTATE ET AL
1301689
Aug 14, 2009
Santa Barbara County, CA
False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. (Jackson v. Mayweather (2017) 10 Cal. App. 5th 1240, 1264.)
LEAH REMINI VS CHURCH OF SCIENTOLOGY INTERNATIONAL, INC., ET AL.
23STCV18300
Jan 16, 2024
Los Angeles County, CA
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.