California amends its right of publicity statute, adding provisions for soldiers and others who become famous due to death

This is significant because while the existing 3344.1 of the California Civil Code provides a 70 year term of post-mortem protection, it is for those who meet the criteria of personalities:  “any natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death.”  This would suggest that those who are not personalities at the time of their death might not be eligible for protection under the prior version of the California statute.  The new bill clarifies this point by adding that “personalities” includes those “whose name, voice, signature, photograph, or likeness has commercial value…because of his or her death.”    

The bill was sponsored by former Marine and current Assemblyman Paul Cook, because of the recent emergence of websites selling T-shirts with names of American soldiers killed in the Iraq War.  Other states have enacted similar provisions in recognition of soldiers or others who become famous because of their death, including Arizona (Ariz. Rev. Stat. § 13-3726 (2009), Florida (Fl. Stat. § 540.08 (2009); Louisiana (La. Rev. Stat. § 102.21 (2009)), Oklahoma (Okla. Stat. tit. 21, § 839.1A (2009)) and Texas (Tex. Prop. Code Ann. § 26.001 et. seq. (2009)).  

The California statute was amended in 2007 to clarify or confirm that the statute’s provisions were retroactive to those who died before the effective date of the statute (1985).  Presumably then, the new bill’s provisions are retroactive as well.