Candle in the Wind: Would Elton John's Publicity Rights Extinguish With His Death?


Americans are fascinated by the untimely deaths of celebrities. As with James Dean, Marilyn Monroe and Elvis Presley, dead celebrities are often turned into icons, their names and likenesses memorialized in photographs and posters, on T-shirts and in song. But how much of this activity is authorized by the estates of the dead celebrities, and does it need to be? This question becomes more complicated when a death creates an international sensation. As we know from Princess Diana's widely televised funeral, and the huge sales of Elton John's commemorative "Candle in the Wind 1997", America's fascination is not limited to American celebrities.

So, consider this hypothetical question: what if Elton John dies in an automobile accident tomorrow? On the heels of his death, your company, located in New York, gets to work on a video about Sir Elton's life. Your company obtains all the necessary copyright clearances for the film footage, recordings and musical compositions used in the video, but Elton John's estate will not grant you a license to use his name or likeness in connection with the project. Your company makes the video anyway, and begins a nationwide marketing campaign. As an incentive to prospective purchasers, your company offers them, with the purchase of the video, a framed photograph of Elton John, bearing the caption "ELTON: 1947 - 1999". The video (and photo) sell like hot cakes and Sir Elton's estate is irate. But what rights would his estate have?

Choice of Law

The nature and scope of Elton John's right of publicity will depend greatly on what law would apply to his estate's claims. Generally, U.S. courts will apply the law of the plaintiff's domicile in determining whether a right of publicity exists--treating the issue as a question of property law, and looking to the law of the place where the "property" is located. See S. Rothenberg, D. Rabinowitz & H. Godin, Choice of Law in Sound-Alike Cases, 14 Ent. L. Rep. 3, 5 (1993 no. 8) (hereafter, "Choice of Law"), quoted in 2 J. Thomas McCarthy, The Rights of Publicity and Privacy § 11.3[D][3][c], at 11-18 - 11-18.1 (1997) (hereinafter "McCarthy"). This rationale has also been applied to determinations of what state's law will apply to determine whether a right of publicity is descendible. See generally, Choice of Law, at 5; 2 McCarthy § 11.3[D][3][a], at 11-17 - 11.-18.1.(1)

For example, the Second Circuit Court of Appeals applied the law of the late Elvis Presley's domicile, Tennessee, to determine whether an exclusive licensee of his estate could assert a right of publicity claim against an unauthorized user of Presley's likeness. See Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278 (2d Cir. 1981), cert. denied, 456 U.S. 927 (1982) ("Factors II"). In light of a decision by the Sixth Circuit that Tennessee law would not recognize a postmortem right of publicity, the Factors II court held that Presley's estate had no rights of publicity in his name and likeness to convey to third parties. Accordingly, it vacated a permanent injunction entered against a distributor of posters of Presley which had been licensed the copyright in the picture but not the publicity rights.(2)

See also Cairns v. Franklin Mint Co., 24 F. Supp. 2d 1013, 1025-26 (C.D. Cal. 1998), leave to appeal granted, No. 99-___ (9th Cir. Jan. 21, 1999) (in action brought by Princess Diana's estate to enjoin unauthorized production and advertisement of jewelry, commemorative plates, sculptures and dolls depicting Princess Diana, the law of Diana's domicile at the time of her death--Great Britain--applied to determine whether her estate had a right of publicity in her name and likeness); Groucho Marx Productions, Inc. v. Day & Night Co., 689 F.2d 317 (2d Cir. 1982) (in action to enjoin theatrical presentation in New York of a play which imitated the Marx Brothers' comedic style, the law of California, where each of the brothers had been domiciled at the times of their deaths, applied to determine whether the right of publicity formed a part of the decedents' estates); Southeast Bank, N.A. v. Lawrence, 66 N.Y.2d 910, 912, 498 N.Y.S.2d 775, 776 (1985), reh'g denied, 67 N.Y.2d 647, 499 N.Y.S.2d 1032 (1986) (in action brought on behalf of the heirs of deceased playwright Tennessee Williams, the law of Williams' domicile, Florida, applied to deny the heirs' standing to assert right of publicity claim on behalf of the estate, as such claims could only be asserted by a decedent's widows and children). But cf. Donahue v. Warner Bros. Pictures, Inc. 194 F.2d 6 (10th Cir. 1952) (motion picture portraying deceased entertainer had been exhibited in Utah; therefore, plaintiffs, as successors to entertainer's privacy rights, properly commenced action in Utah under Utah law even though they and entertainer were residents of California, which at the time, did not recognize a descendible right of publicity).(3)

Once the court determines that the individual or his or her estate possesses a right of publicity under the law of his or her domicile (an issue of property law), it may then apply the law of the state having the most significant interest in the conflict to determine whether that right has been infringed (an issue of tort or contract law). See Acme Circus Operating Co. v. Kuperstock, 711 F.2d 1538, 1541 (11th Cir. 1983) ("although in California the 'governmental interest analysis' applies to choice of law issues arising from a question of whether an existing right has been tortiously infringed, the law of the domicile controls to decide whether the allegedly infringed property right exists in the first instance"); Joplin Enters. v. Allen, 795 F. Supp. 349 (W.D. Wash. 1992) (applying the law of California, the state of the late Janis Joplin's domicile, to determine whether her devisees possessed a right of publicity, and if such a right existed, the law of the state having the most significant relationship to the conflict to determine whether the right had been tortiously infringed).

Elton John was born in Pinner, Middlesex, England and was domiciled in England at the time of his hypothetical death. Under the law of the U.K., Elton John did not possess a right of publicity during his lifetime, and therefore, no such right passed to his estate when he "died". As a leading commentator on the right of publicity explains, "English law gives no protection to a natural person whose name, voice or likeness has been used, without consent, for the commercial use of another." 1 McCarthy § 6.21, at 611 (citation omitted). Thus, where a candy manufacturer had used a well-known amateur golfer's picture in an advertisement for chocolate, the court rejected the notion of tort liability based upon misappropriation of the celebrity's name or likeness. The court explained that "some men and women voluntarily enter into professions which by their nature invite publicity, and ... [i]t is not unreasonable in their case that they should submit without complaint to their names and occupations and reputations being treated ... almost as public property." Tolley v. Fry, 1 K.B. [1930] 467, 477, rev'd on other grounds, [1931] A.C. 333; see also Lyngstad v. Anabas Prods. Ltd. [1977] FSR 62 (in action brought by members of the band ABBA to enjoin manufacturer of merchandise bearing their names and likenesses, the court noted that "[t]o suggest that there is some proprietary right in the plaintiffs' name which entitled them to sue simply for its use is contrary to all the English authorities ...."); Kaye v. Robertson, [1991] FSR 62 (in action to enjoin publication of unauthorized interview and photographs of hospitalized actor recovering from extensive head surgery, the court noted that "[i]t is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy."); see generally Cairnes, 24 F. Supp. 2d at 1023-24 ("Great Britain does not recognize a descendible right of publicity."); Bi-Rite Enters., Inc. v. Bruce Miner Co., 757 F.2d 440, 442 (1st Cir. 1985) ("Great Britain does not recognize a right of publicity."). These decisions reflect the attitude of the U.K. courts that "famous people are a kind of public property whose commercial exploitation, while sometimes deplorable, should not be subject to legal control; [and] that prominent persons ought to shrug off unauthorized appropriation with a kind of aristocratic contemptuousness ...." Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Calif. L. Rev. 127, 240 n.127 (1993).

Accordingly, the U.K. does not recognize an analogue to the right of publicity recognized in many states in the U.S. Under U.K. law, therefore, your company would not be required to obtain a license in order to use Elton John's likeness, as a premium or otherwise.(4)

Thus, in jurisdictions which apply the law of the decedent's domicile to determine whether the right of publicity exists, Elton John's estate should not be able to effectively assert a claim against your company based upon the unauthorized use of his name and likeness in connection with the photograph.

Not all U.S. jurisdictions, however, will necessarily apply the law of the plaintiff's domicile in this context. For example, the Indiana right of publicity statute expressly "applies to an act or event that occurs within Indiana, regardless of a personality's domicile, residence, or citizenship." Ind. Code § 32-13-1-1(a). The statute also confers upon the Indiana courts jurisdiction over a person who, among other things, "transports or causes to be transported into Indiana goods, merchandise, or other materials created or used in violation" of the right of publicity or "knowingly causes advertising or promotional material created or used in violation of [the right of publicity] to be published, distributed, exhibited, or disseminated within Indiana". Ind. Code §§ 32-13-1-9(3), (4), 32-13-1-6.(5) Under the Indiana statute, your company, by promoting and distributing the videocassette and photograph on a national scale, would apparently submit both to jurisdiction in Indiana and to that state's right of publicity laws.

Your company could also face a right of publicity claim if Sir Elton had an exclusive merchandising representative residing in a state which recognizes a descendible right of publicity. In Bi-Rite Enters., Inc. v. Button Master, 555 F. Supp. 1188, supplemented by, 578 F. Supp. 59 (S.D.N.Y. 1983) a number of musical performers and groups, as well as a manufacturer and distributor of merchandise bearing the artists' names and likenesses, sued unauthorized manufacturers of similar merchandise for, among other things, right of publicity violations. Among the plaintiffs were the musical groups Judas Priest and Iron Maiden - both comprised of members residing solely in the U.K.

The Southern District of New York, consistent with the reasoning of the Second Circuit in Factors II and Groucho Marx, found the right of publicity to be like a property right, and thus applied the jurisdiction's property choice-of-law rules to determine whether the plaintiffs possessed a protectable right of privacy. The Button Master court gave an ambiguous reading to this rule of law, however, concluding that "the law of the states in which plaintiffs or their exclusive licensees reside controls." Id. at 1197 (emphasis added). In recognizing a right of publicity of the members of Judas Priest and Iron Maiden, the court stated:

All members of the groups Judas Priest and Iron Maiden reside in Great Britain, but market themselves exclusively through a Georgia based merchandising representative; Georgia law controls their rights.

Id. As Georgia recognizes a common law right of publicity, see Martin Luther King, 250 Ga. at 145-46, 296 S.E.2d at 705, these U.K. bands and their individual members(6) were found to have standing to pursue their right of publicity claims.(7) They were awarded damages for defendants' violation of those rights. See Bi-Rite v. Button Master, 578 F. Supp. 59 (S.D.N.Y. 1983).(8)

Similarly, in Bi-Rite Enters., Inc. v. Bruce Miner Co., 757 F.2d 440 (1st Cir. 1985), the First Circuit, applying Massachusetts choice of law rules, found the plaintiff U.K. domiciliaries to possess a right of publicity in the United States. The plaintiffs in Bruce Minor included a number of British musical groups, the members of which were all residents of Great Britain, who asserted that defendants had violated their rights of publicity by distributing posters bearing their likenesses in the United States. The Massachusetts district court imposed a preliminary injunction against defendants' distribution of the posters and defendants appealed, arguing that the law of the U.K. applied to plaintiffs' action and that because British law does not recognize a right of publicity, the action should be dismissed. The First Circuit, applying Massachusetts choice of law rules, affirmed the order of the district court.

In rejecting defendants' contention that a court needs only to consider the domicile of the person whose name or likeness is being exploited to determine the governing law, the Bruce Minor court stated:

To focus solely on that domicile would disregard the development of Massachusetts law which now calls for the "more functional approach". . . . Under such an approach, domicile is significant only to the extent that it implicates interests that are cognizable under an "interest" or "most significant relationship" analysis.

Id. at 443. Rather than applying the law of the plaintiff's domicile, the court relied on the multi-factored test set forth in the Restatement (Second) Conflict of Laws(9) and found the factors to balance in favor of the musicians. As between the United States and the U.K., the Bruce Minor court reasoned that British law and policy would not be offended by the application of U.S. law because the recognition of American publicity rights for British performers would not restrict free commerce in the U.K. 757 F.2d at 445. The court indicated that to rule otherwise would cause "unnecessary confusion", by requiring American producers to tailor their actions according to the nationality of the individual depicted on their merchandise. Id. The Bruce Minor court thus held that U.S. law applied to determine the existence of a publicity right. With respect to the musician plaintiffs, the determination of whether defendants infringed that right would be governed by Georgia law, the law of the state in which the U.S. licensing agent for the musicians, a non-party to the action, was domiciled. Id. at 446.

Neither Button Master nor Bruce Minor, however, dealt with the issue of descendibility, since all the musicians involved were alive. The courts' analyses might have been different had they been confronted with this issue. Accordingly, it is not clear that under either of these cases the determination of whether Elton John's estate possesses a postmortem right of publicity should be determined under U.S. law. Further, it also is unclear which state's law would apply to make this determination, especially if neither Elton John nor his estate has a U.S. licensing agent. Therefore, it is not possible to predict whether under Button Master or Bruce Minor, Elton John's estate could effectively assert a claim against your company for violation of his right of publicity. However, if Sir Elton did have an exclusive licensing agent in a state recognizing a post-mortem right of publicity, and your company is sued by his estate in the Southern District of New York or in Massachusetts, you may have to resort to additional, more substantive defenses.

Newsworthiness

In the event that either the Button Master or Bruce Minor decisions is applied to recognize a descendible right of publicity for Elton John in the United States, or an action is commenced in a state such as Indiana, which recognizes a descendible right of publicity and excludes application of conflict of laws, your company's distribution of the videocassette and photograph should nevertheless fall within a well-recognized exception to the general rule that the unauthorized use of an individual's name or likeness for advertising purposes or for purposes of trade violates the individual's right of publicity (or right of privacy). Under the "newsworthiness" exception,(10) the use of the name or likeness of an individual will not violate the individual's right of publicity where the use reports on "newsworthy items of public interest" to which First Amendment protection is extended. Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790, 40 Cal. Rptr. 2d 639 (Cal. Ct. App. 1995).

In Montana, quarterback Joe Montana asserted that his publicity rights had been violated by a newspaper which had manufactured and sold posters containing his name and likeness. The posters contained reproductions of a photograph and an artist's drawing of Montana which had appeared in the newspaper after the San Francisco 49'ers (Montana's team at the time) had won its fourth Super Bowl of the 1990's. The court found the use to be protected by the First Amendment.(11) Montana's leading his team to four Super Bowl championships in one decade "was clearly a newsworthy event", and the newspaper articles reporting on the event and containing photographs and drawings of Montana were indisputably afforded First Amendment protection. Id. at 794-95, 40 Cal. Rptr. 2d at 640-41. The court held that the poster portraying Montana in that newsworthy role was therefore similarly a "form of public interest presentation to which protection must be extended.'" Id. (quoting Paulsen v. Personality Posters, Inc., 59 Misc. 2d 444, 450, 299 N.Y.S.2d 501, 507 (Sup. Ct. N.Y. Co. 1968) (unauthorized posters containing likeness of well-known entertainer who had entered the 1968 presidential race as a joke, bearing the words "FOR PRESIDENT" at the bottom, did not violate entertainer's right of publicity as they depicted matters of public interest); see also Jackson v. MPI Home Video, 694 F. Supp. 483, 492 (N.D. Ill. 1988) (granting Jesse Jackson's motion to enjoin distribution of videocassettes of a speech given at the 1988 Democratic National Convention on copyright infringement grounds, but noting that Jackson's likelihood of success on the merits of his right of publicity claims was "less than negligible" because defendants "were engaged in news reporting"); Dora v. Frontline Video, Inc., 15 Cal. App. 4th 536, 18 Cal. Rptr. 2d 790 (Cal. Ct. App. 1993) (surfing legend unsuccessfully asserted right of publicity claims against producer of video documentary on surfing which incorporated his image, finding that the documentary contained matters of public interest).

Your company would rely on the Montana line of cases to defend a right of publicity claim asserted by Elton John's estate. Like the poster in Montana, the photograph commemorates a newsworthy event, the death of a pop star who has been in the public spotlight for nearly three decades based on both his artistic achievements and his personal life. It is being given away in connection with the videocassette which, like the newspaper in Montana, reports on this newsworthy event and is invested with First Amendment protection. Under Montana, the photograph, bearing a legend referencing Elton John's untimely death, should be construed as a "form of public interest presentation", protected by the First Amendment.

Your company, however, may be unable to rely on Montana's reasoning in all jurisdictions. The Second Circuit, for example, narrowly construed the newsworthiness defense to find that a poster bearing the likeness of the late Elvis Presley infringed his right of publicity. See Factors I, 579 F.2d at 222. In Factors I, three days after Presley's death, the defendant published a poster using a photograph of Presley to which it had purchased the copyright. The poster was entitled "IN MEMORY" and below the photograph of Presley, bore the dates "1935-1977". Plaintiff, having obtained the exclusive license to commercially exploit the name and likeness of Presley, sought to enjoin defendant from marketing the poster.

The Second Circuit affirmed the district court's decision finding that Presley's right of publicity was descendible and assignable (see footnote 2, supra) and rejected defendant's alternative argument that defendant was privileged to print and distribute the poster because the poster celebrated a newsworthy event. Distinguishing Paulsen, the Factors I court summarily reasoned:

We cannot accept Pro Arts (sic) contention that the legend "IN MEMORY ..." placed its poster in the same category as one picturing a presidential candidate, albeit a mock candidate. We hold, therefore, that Pro Arts' poster of Presley was not privileged as celebrating a newsworthy event.

Id. at 222; see also Titan Sports, Inc. v. Comics World Corp., 870 F.2d 85 (2d Cir. 1989) (finding a genuine issue of material fact as to whether posters contained in a wrestling magazine were included in the magazine "primarily for their 'public interest aspect'" and merited First Amendment protection, or were included primarily for a commercial purpose and violated the wrestlers' publicity rights).

The similarities between Factors I and your company's proposed distribution of the photographs are fairly obvious. In both instances, on the heels of the death of a famous, iconic figure, a photograph of the deceased personality is distributed bearing a legend referencing the untimely death. While your company can distinguish Factors I by virtue of the fact that the photograph of Elton John is only being distributed in connection with the videocassette (which contains material protected by the First Amendment), this distinction will not necessarily exculpate your company from liability. See Titan, 870 F.2d at 88-89 (involving distribution of free posters with a magazine). If Elton John's estate were to assert his right of publicity against your company in a jurisdiction recognizing Factors I and Titan, then your company would be forced to argue that the public interest aspect of the photograph outweighs any commercial purpose behind the promotion.

The jurisdictions bound by the Second Circuit's decisions in Factors I and Titan are the federal districts of New York, Connecticut and Vermont. However, Elton John's estate probably could not effectively rely on these decisions in an action commenced in New York. Under Button Master, a New York court may look to the law of the decedent's domicile, or the domicile of the decedent's exclusive licensee, to determine the existence of the right of publicity. Unless Elton John had an exclusive licensing agent residing in a jurisdiction recognizing a descendible right of publicity, the New York court would look to the law of Sir Elton's domicile to determine the existence of his publicity right, which would foreclose the action in New York and thus, hopefully, application of the Factors I and Titan cases.

While Connecticut and Vermont have not expressly recognized a right of publicity, in Jim Henson Productions, Inc. v. John T. Brady & Assocs., Inc., 867 F. Supp. 175, 189-90 (S.D.N.Y. 1994), the Southern District of New York, opining on a matter of first impression under Connecticut law, held that the Connecticut Supreme Court would recognize a common law right of publicity, and that such a right would be descendible.(12) It is impossible to predict with accuracy the effect the Henson decision would have on a Connecticut state court if presented with the issue, or how other jurisdictions outside the Second Circuit, which both recognize a descendible right of publicity and do not look to the decedent's domicile to determine the existence of the right, would respond when confronted with the issue raised by your company's distribution of the photograph in connection with the videocassette. Nonetheless, a coalescence of all of the aforementioned factors adverse to your company is required in order for its distribution of the photograph to result in a violation of Elton John's right of publicity. To date, such an adverse convergence of factors has not occurred. Therefore, at the present time, we cannot say that your company's distribution of the photograph with the videocassette would result in a violation of the right of publicity in the U.S. of the late (hypothetically, of course) Elton John.


1 The following states recognize a descendible right of publicity: California, see Cal. Civ. Code § 990 (West 1995); Florida, see Fla. Stat. Ann. § 580.08(1)(c) (West 1995); Georgia, see Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Prods., Inc., 250 Ga. 135, 145-46, 296 S.E.2d 697, 705 (Ga. 1982) (common law descendible right of publicity); Indiana, see Ind. Code § 32-13-1-6 (1995); Kentucky, see Ky. Rev. Stat. Ann. § 391.170 (Baldwin 1984); Nebraska, see Neb. Rev. Stat. § 20-208 (1994); Nevada, see Nev. Rev. Stat. § 597.790(1) (1995); New Jersey, see Estate of Elvis Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981) (common law descendible right of publicity); Oklahoma, see Okla. Stat. tit. 12, § 1448 (1986); Tennessee, see Tenn. Code Ann. § 47-25-1103(b) (1984); Tennessee ex rel. Elvis Presley Int'l Memorial Foundation v. Crowell, 733 S.W.2d 89, 99 (Tenn. Ct. App. 1987) (in addition to statutory descendible right of publicity, Tennessee also recognizes a descendible common law the right of publicity with respect to rights of publicity in existence prior to the effective date of the statute cited infra.); Texas, see Tex. Prop. Code Ann. § 26.002 (West 1995); Virginia, see Va. Code Ann. § 8.01-40(B) (Michie 1950); and Washington, see Wash. Rev. Code Ann. § 63.60.010 (West 1998); see also Jim Henson Productions, Inc. v. John T. Brady & Assocs., Inc., 867 F. Supp. 175, 189-90 (S.D.N.Y. 1994) (opining that Connecticut's highest court would recognize a descendible right of publicity). Significantly, New York does not. See Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990) (the New York Civil Rights Law is "clearly limited" to "'any living person'").

2 The Second Circuit had originally applied New York law to affirm a preliminary injunction against the sale of the Presley posters, see Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978), cert. denied, 440 U.S. 215 (1979) ("Factors I"), but effectively reversed itself in light of the Sixth Circuit's ruling. See Memphis Dev. Foundation v. Factors Etc., Inc., 616 F.2d 956, 959-60 (6th Cir.), cert. denied, 449 U.S. 953 (1980). Subsequently, Tennessee enacted its right of publicity statute, which in relevant part provides that the "personal property rights" protected by the statute are descendible and remain exclusive for ten years after the death of the individual (after the ten-year period, the exclusivity is terminable by proof of nonuse of decedent's name, likeness or image "for a period of two (2) years"). Tenn. Code Ann. § 47-25-1104. In Tennessee ex rel. Elvis Presley Int'l Memorial Foundation v. Crowell, 733 S.W.2d 89, 99 (Tenn. Ct. App. 1987), the Tennessee Court of Appeals then held that the right of publicity was also descendible under common law with respect to rights of publicity that were in existence prior to the effective date of the statute. No limitations period was placed on the exclusive use of the common law right.

3 In Donahue, the Tenth Circuit held that the use of a name or picture in a motion picture, based on fiction, would fall within the scope of the Utah state statute prohibiting the use of a person's name or likeness "for advertising purposes or for purposes of trade", provided that the use was not incidental and the motion picture was not "essentially educational or informative". 194 F.2d at 12. After the Tenth Circuit issued its opinion, it remanded the case to federal district court in Utah for a determination of whether the portrayal of Donahue violated the statute. After the remand, the case was transferred to state court, where the Utah Supreme Court held that the statute was intended to prohibit the use of a name or likeness "for advertising or promoting the sale of merchandise" only, and that the portrayal of Donahue in the motion picture "was not 'for purposes of trade' within the meaning of the prohibitions contained in [the Utah statute]." Donahue v. Warner Bros. Pictures Distributing Corp., 2 Utah 2d 256, 272 P.2d 177 (Utah 1954).

4 There are signs that the UK's attitude towards the individual right of privacy are starting to change. The Human Rights Bill, incorporating the European Convention on Human Rights and Fundamental Freedoms into English law, was entered into the statute book late last year and will take effect in January 2000. See Frances Gibb, Courts Prepare for Act That Will Change Lives, The Times (London), Oct. 26, 1998, at 23. For the first time, English law will recognize an individual's right of privacy. See Clare Dyer, Analysis: Privacy: The Media Take a Shot in the Dark, The Guardian (London), Dec. 19, 1997, at 15. Two provisions of the Convention, which were incorporated into the Bill, are of particular relevance here. Article 8 provides that "[e]veryone has the right to respect for his private life, his home and his correspondence", and prohibits a "public authority" from interfering with this right, except in the interest of national security. European Convention on Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 8, 213 U.N.T.S. 221. Article 10, while recognizing "the right to freedom of expression", acknowledges that certain circumstances (e.g., protection of reputation, preventing disclosure of information received in confidence) will warrant that the right be curtailed. Id. at art. 10. It is unclear, however, what effect the enactment of the Human Rights Bill would have on the right of nongovernmental persons and entities to exploit the name, voice or likeness of a U.K. domiciliary: the Bill would only enable people to challenge public authorities throughout the courts, rather than comprising a more general privacy law. An individual would therefore face the daunting and uncertain prospect of having to take action against the UK government for failing to implement adequate measures to protect their privacy.

Michael Hart & Paul Cohen, The Right to Privacy: A Worldwide Survey, 79 Managing Intellectual Property 49 (May 1998). Thus, even after enactment of The Human Rights Bill, Elton John's estate still would not have an enforceable right against your company for its unlicensed exploitation of his name and likeness in the videotape and photograph.

5 Our research revealed no reported case law decided under the Indiana statute and no law review article discussing its application in a situation similar to the hypothetical one presented in this article.

6 The Button Master court recognized that a musical group could possess a right of publicity in its name and likeness separate and apart from the right of publicity possessed by its individual members. 555 F. Supp. at 1199.

7 Button Master appears to allow a domiciliary of a state (or country) which does not recognize publicity rights to invest himself or herself with publicity rights by appointing an exclusive agent in a jurisdiction recognizing these rights. Query whether the holding would also allow a domiciliary of a state which does not recognize a descendible publicity right to appoint an exclusive agent in a jurisdiction which does in order to invest his or her estate with such publicity rights. The Button Master court, however, chose to ignore the ramifications of its holding, failing to even acknowledge that by applying the law of Georgia, it was investing U.K. residents with rights not recognized in their home country.

8 In Cairnes, the federal district court for the Central District of California acknowledged Button Master, but found it inapplicable as all of the plaintiffs in that case (Princess Diana's estate and her memorial fund) resided in Great Britain. 24 F. Supp. 2d at 1029 n.12.

9 The Restatement provides that, in the absence of a statutory directive, the factors relevant to the choice of applicable rule of law are: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. Restatement (Second) Conflict of Laws § 6(2) (1971).

10 The Indiana state statute specifically recognizes a "newsworthiness" exception. See Ind. Code § 32-13-1-1(c)(1)(B) (the statute does not apply to "[m]aterial that has political or newsworthy value"); cf. Time Inc. v. Sandcreek Partners, L.P., 825 F. Supp. 210 (S.D. Ind. 1993) (photographs taken of Lyle Lovett and Julia Roberts on their wedding day for publication in People magazine were "newsworthy", as that term is to be "broadly construed", and therefore did not infringe the couple's right of privacy under Indiana law) (citing Paulsen v. Personality Posters, Inc., 59 Misc. 2d 444, 299 N.Y.S.2d 501, 506 (Sup. Ct. N.Y. Co. 1968)).

11 The court also found that the poster did not violate Montana's right of publicity "because a newspaper has a constitutional right to promote itself by reproducing its originally protected articles or photographs." 34 Cal. App. 4th at 797, 40 Cal. Rptr. 2d at 643; see also Booth v. Curtis Publishing Co., 15 A.D.2d 343, 349, 223 N.Y.S.2d 737, 743 (1st Dep't), aff'd, 11 N.Y.2d 907, 228 N.Y.S.2d 468 (1962) (photograph of actress Shirley Booth, originally appearing in magazine, could be used in advertisement for magazine in order to illustrate the quality and content of the magazine); Velez v. VV Publishing Corp., 135 A.D.2d 47, 49, 524 N.Y.S.2d 186, 187 (1st Dep't), appeal denied, 72 N.Y.2d 808, 533 N.Y.S.2d 57 (1988) (photograph of community activist, originally appearing on cover of Village Voice, could be used in advertisement in which the cover was reproduced as a "logical extension of the clearly protected editorial use of the content of the publication"); Namath v. Sports Illustrated, 48 A.D.2d 487, 371 N.Y.S.2d 10 (1st Dep't 1975), aff'd, 39 N.Y.2d 897, 386 N.Y.S.2d 397 (1976) (use of photographs of plaintiff performing in 1969 Super Bowl could be republished in a series of advertisements promoting the sale of subscriptions to Sports Illustrated in order to illustrate the content of the magazine).

12 In a poorly reasoned opinion, the court relied not on analogous cases decided under Connecticut law, but exclusively on national trends. The court stated that it found "no reason to believe that Connecticut would buck the apparent trend in the law towards recognizing the right of publicity", 867 F. Supp. at 189, and that "the overwhelming majority rule under either statute or common law is that the right of publicity is descendible property and has an unconditional postmortem duration." Id. at 190.