Opinion
Hearing Granted Nov. 17, 1977.
Opinions on pages 430-443 omitted.
HEARINGS GRANTED
[140 Cal.Rptr. 776]Rudin & Perlstein by Vincent H. Chieffo, Beverly Hills, for plaintiff and appellant.
Lillick, McHose & Charles, Kenneth E. Kulzick, Lawrence W. Dam, M. Kathleen Hallberg by Kenneth E. Kulzick, Los Angeles, for defendants and respondents.
BEACH, Associate Justice.
Plaintiff Jean Guglielmi appeals from the dismissal of his complaint following the sustaining of a demurrer.
Plaintiff alleges in his complaint that Rudolpho Guglielmi, also known as Rudolph Valentino, was the paternal uncle of plaintiff and that by order of court plaintiff was entitled to the residue and remainder of Valentino's estate. Plaintiff contends that included in the residue and remainder of the estate was Rudolph Valentino's 'right of publicity,' as a result of which plaintiff has the sole exclusive right to the use of the name, likeness, and personality of Rudolph Valentino.
Defendants and respondents are Spelling-Goldberg Productions, Aaron Spelling, Leonard Goldberg, the American Broadcasting Company, Inc., and KABC TV, Inc. Defendants produced and exhibited a film entitled 'Legend of Valentino: A Romantic Fiction.' The first cause of action, now abandoned, alleges that the film 'purports to represent a portion of the life of Rudolph Valentino and employs the name, likeness, and personality of Rudolph Valentino.' The second cause of action alleges 'said film is a false, untrue and demeaning representation of Rudolph Valention and is, in fact, a fictionalization and fabrication created out of the whole cloth of defendants' imaginations.' The third cause of action alleges defendants have used for advertising purposes the name, likeness, and personality of Rudolph Valentino to solicit and to sell commercial sponsorship of said film and to solicit viewers for the exhibition of said film. Plaintiff prayed for a preliminary and permanent injunction restraining defendants from commercially exhibiting the film without the express consent of plaintiff; for damages in an amount according to proof; and for injunctions restraining the advertising use of the name, likeness, or reputation of Rudolph Valentino without the express consent of plaintiff.
Defendants note that American Broadcasting Companies, Inc., was erroneously sued as the American Broadcasting Company.
[140 Cal.Rptr. 777]Defendants demurred to the complaint on the basis that the allegations failed to state facts sufficient to constitute a cause of action. Defendants argued that even Valentino himself could not assert a claim against a biography; that no right of privacy descends to a celebrity's heirs; and that not even the 'right of publicity,' where it is recognized, has been held to descend to heirs. Plaintiff relied on many out-of-state and federal cases to support the purported right to publicity and its nature as a property right that descends to the deceased's heirs.
The minute order of the trial court sustaining the general demurrer to each and every cause of action was based on the grounds set forth in the points and authorities. The court gave plaintiff thirty days to amend but stated that if the plaintiff desired to test the court's ruling by appeal, the court would sustain without leave and dismiss and plaintiff could appeal therefrom. Regarding the merits of the demurrer, the court observed as follows:
Plaintiff filed an election to stand on the complaint without amendment.
'Plaintiff finds himelf in an unenviable position: His uncle, as alleged by him, was a world-renown silent motion picture actor and personality; and solely because of his stature became part of history and of interest to the public. Plaintiff now seeks, because of what he asserts is a right of publicity that descended to him to prevent reference by anyone to his uncle as part of such history, without his consent. To follow plaintiff's position to it's [sic] ultimate conclusion or objection, no history book, no story, no film, no article could be written of and concerning such person without first checking with all of such persons heirs or residuary legatees as to the 'Accuracy' of such portrayal; thus totally subjecting history to such prior censorship.
'It may be assumed no program or commercial production, nor any article (even a history book) is prepared or written or presented without an inthout an intention to make a profit. (It could even be urged, however, that the presentation of the program enhanced the value of the name, likeness and personality of Rudolph Valentino because of current dissemination to the public where he has been deceased for at least 40 years (date of the probate order alleged in the complaint).)
'To permit plaintiff's position to prevail would prevent such programs as the Adams' Family Chronicles, for example. If there is to be such a property right as alleged by plaintiff, it should be for the legislature or an appellate court, and not for this Court, to so decree. . . .'
CONTENTIONS ON APPEAL:
1. Rudolph Valentino owned the exclusive right to exploit the commercial value of his identity.
2. Rudolph Valentino's exclusive right to exploit the commercial value of his identity descended to plaintiff, his residuary legatee.
3. Defendants' fictionalized film 'Legend of Valentino: A Romantic Fiction' is a misappropriation of commercial value of Rudolph Valentino's personality.
DISCUSSION:
The trial court properly sustained the demurrer and dismissed the case.
This case presents the question of whether heirs of a famous person have a cause of action resulting from a false and demeaning representation of their ancestor. We note that appellant has waived his appeal from his first cause of action, which did not allege that the representation was a false and demeaning fictionalization.
Since the issue was presented at the demurrer stage, we must accept the allegations as true in reviewing the propriety of the trial court's order dismissing the complaint. (Hill v. City of Santa Barbara, 196 Cal.App.2d 580, 585, 16 Cal.Rptr. 686.)
Appellant claims that Valentino had the exclusive right to exploit the commercial value of his identity during his lifetime and [140 Cal.Rptr. 778] that that economic right descended to his heirs upon his death. Appellant admits he does not assert his uncle's right of privacy, nor does he seek damages for injury to personal feelings; he acknowledges that the right of privacy dies with the person. (Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59, 62, 121 Cal.Rptr. 429.)
We disagree with appellant's broad assertion that Valentino had the exclusive right to exploit the commercial value of his identity during his lifetime. The First Amendment of the United States Constitution limits his control of portrayals of his life; the press may publicize the life of a public official or celebrity without liability, unless there has been a knowing or reckless disregard for the truth. (New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.) If, as alleged in the complaint, defendants acted with knowledge or reckless disregard of the falsity of such film during Valentino's lifetime, the celebrity would have had an action for defamation. However, that cause of action is personal.
The public policy grounds for allowing biographies, however unauthorized, are different from those regarding the issuance of posters or sweatshirts emblazoned with the likeness of the deceased celebrity. We need not reach the latter issue in the instant case.
The cause of action for defamation protects one of the four interests described by Professor Prosser as comprising the larger right of 'privacy.'
'The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, 'to be let alone.' Without any attempt to exact definition, these four torts may be described as follows:
'1. Intrusion upon the plaintiff's seclusion or solitude or into his private affairs.
'2. Public disclosure of embarrassing private facts about the plaintiff.
'3. Publicity which places the plaintiff in a false light in the public eye.
'4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.' (Prosser, Privacy, 48 Cal.L.R. 383, 389.)
It is the fourth described type of interest under which appellant claims an inheritable 'property' interest but alleges facts which show a violation of the third interest described, which does not produce an inheritable cause of action. Prosser elsewhere explains:
'As to any of the four, it is agreed that the plaintiff's right is a personal one, which does not extend to members of his family, unless, as is obviously possible, their own privacy is invaded along with his. The right is not assignable, and while the cause of action may or may not survive after his death, according to the survival rules of the particular state, there is no common law right of action for a publication concerning one who is already dead.' (Emphasis added.) (Prosser, Law of Torts (4th ed. 1971), 807, 813-814.)
In California there is no statutory or common law rule providing for such survival of the personal cause of action. To escape the effect of the present law, appellant attempts to recover for non-actionable defamatory conduct by claiming a property right in the right of publicity. Appllant's claim is not persuasive. It is unimportant whether the alleged or asserted right is labeled as a tort right or a property right. The better analysis is: 'Are there strong considerations of public policy that demand a recognition of an inheritability of the right? Should the 'right of publicity' be limited to the rights created by the actual exercise of such right by the decedent during his lifetime and solely as personal to him?' Appellant has not demonstrated why recognizing his claim should prevail over the present public policy of allowing wide latitude in the exercise of the defendant's First Amendment rights.
[140 Cal.Rptr. 779]The decedent himself may have had some right, which arguendo we will call the right of publicity, but it is not alleged that he developed or exercised such right as to create actual property of a recognized and inheritable character. It is not alleged here that Rudolph Valentino during his lifetime made certain contracts and agreements which had property values in and of themselves or produced profits or royalties to continue for a number of years.
It seems to us rather novel to urge that because the ancestor or person from whom another is inheriting, did not exploit the flood of publicity 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 or those who take his will. That is what appellant's claim boils down to. Appellant's claim is that now that his uncle Rudolph Valentino is dead, he as the inheritor of the residue of the estate is the only one who should have the opportunity to exploit his uncle's personality.
If rights to the exploitation of artistic or intellectual property never exercised during the lifetime of their creators were to survive their death, neither society's interest in the free dissemination of ideas nor the artist's rights to the fruits of his own labor would be served. Because of the strong policy considerations encouraging the exercise of free expression the law will not recognize a cause of action for defamation of a deceased relative. Moreover we hold that the right to exploit name and likeness is personal to the artist; if not exploited by him during his life, his name and likeness may be used by another without liability to his heirs for such use irrespective of the nature of the use, defamatory or laudatory.
We are unpersuaded by the fact that Price v. Hal Roach Studios, Inc., D. C., 400 F.Supp. 836, which relied in part upon a trial court decision in California, Lugosi v. Universal Pictures, Los Angeles Superior Court No. C 877-975 reached a different result.
Lugosi v. Universal Pictures, supra, is now before the California Supreme Court on appeal.
The judgment (order of dismissal) is affirmed.
FLEMING, Acting P. J., and COMPTON, J., concur.