Judge Says Parts Of Washington's Publicity Rights Law Are Unconstitutional

from the didn't-see-that-coming dept

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Well, here's a pleasant surprise. We've been talking a lot about the rise of publicity rights as a relatively "new" form of intellectual property, driven by a collection of confusing state laws that create a poorly defined "right" for someone to block the use of their likeness (and, in some cases, their appearance, voice, mannerisms, gestures and more...). This has given rise to a new group of what can best be called "publicity rights trolls," looking for ways to exploit these laws for cash. There are some cases making their way through the courts that question whether or not publicity rights violate the First Amendment , but in a surprise ruling up in Washington, a federal judge has ruled that the state's publicity rights law is unconstitutional Unfortunately, the ruling isn't on the larger First Amendment issues, but on a separate issue. The case is complex, to say the least, involving a variety of claims between the heirs of Jimi Hendrix and a Washington-based company that sells Jim Hendrix-related merchandise. There are legitimate trademark claims in there, which resulted in a limited preliminary injunction, which Hendrix's heirs pretended said a lot more than it really said in convincing a retailer to stop purchasing the other firm's merchandise. That resulted in claims of defamation back. Then, Hendrix's heirs tried to avoid even mentioning Washington's publicity rights law, even though they seem to rely on it for part of their argument. And, oh yeah, part of the issue is that Washington's law got updated a few years ago, switching from one where publicity rights only apply to the living, to one where they pass on to heirs. As I said, the case is complex -- you can read all the details in the ruling embedded below.Instead of the First Amendment issues, this case hinges on the question of whether or not the law can apply to celebrities who live (or lived at the time of their deaths) outside of the state. The Washington law says that it can apply to anyone, even if they didn't live in the state at the time of their death. The court notes that this creates some due process questions, such as by enabling the ability to "forum shop." Separately, this court finds this same issue violates the Due Process Clause and the Dormant Commerce Clause by creating an effective "national" publicity rights law, well outside of Washington's borders.In the end, the specific ruling is a bit down in the legal weeds (and likely will be appealed), but it's nice to see at leastpushback on publicity rights laws...

Filed Under: jimi hendrix, publicity rights, washington