Poor Jimi Hendrix. He keeps getting caught up in legal battles. The short version is that when Jimi died intestate, his father Al was his next of kin and took over the estate. Al (and later the rest of Al’s family after he died) and Jimi’s brother Leon have been fighting over Jimi’s name and likeness for years, including a Washington state court action in the 1990s and a Western District of Washington suit in 2003 (Experience Hendrix, LLC v. The James Marshall Hendrix Foundation, 03 Civ. 3462 (W.D. Wash.)). Importantly for our purposes, Jimi Hendrix died as a domiciliary of New York, which, as discussed below, does not recognize a posthumous right of publicity.
Along comes this company (Hendrixlicensing.com) in Nevada that sells t-shirts and such with Jimi Hendrix’ likeness. Experience Hendrix sues under Washington’s Personality Rights Act (PRA), which purports to provide a posthumous right of publicity regardless of the domicile of the celebrity at the time of his or her death. The defendants raise a constitutional challenge to the PRA and Judge Zilly requests briefing, which is provided below (interesting sidebar: Judge Zilly was the judge in the 2003 case between Experience Hendrix and the Hendrix Foundation. There Judge Zilly awarded defendant Hendrix Foundation attorneys’ fees for prevailing under the same PRA statute at issue in this case.).
The defendants raise an interesting point: “By its express language, the WPRA reaches out of Washington, literally through space and time, to events that occurred in other jurisdictions decades prior to its enactment. The Court need only take Experiences’ arguments at face value to see this. Experience contends that a person domiciled in New York in 1970, who had no publicity rights when he died, suddenly has publicity rights and that they can be passed to an heir to be enforced in Washington—a state with no connection to, let alone jurisdiction over, Jimi Hendrix at the time of his death.” As noted, New York has no posthumous right of publicity. Legislative proposals have been made in the past, but never enacted. (Ironically, New York Civil Rights Law Sections 50 and 51, which govern rights of publicity, were enacted in 1903, making New York’s the oldest statutorily-entitled publicity rights). If New York decides not to have descendable publicity rights and a celebrity decides to live in New York precisely so that his/her children can not profit from his/her likeness after his/her death, then Washington’s PRA really does stretch beyond Washington’s borders. Celebrities wishing to avoid this outcome would have to bequeath their publicity rights to a trust with instructions not to exercise those rights (lest the rights flow through intestate succession to the children). This might work for celebrities living today, but what about those who died prior to the enactment of Washington’s PRA?
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