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

Abstract

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 tshirts 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