On January 29, 2014, the California Court of Appeals threw out a claim by the estate of singer/actor Bing Crosby’s first wife Wilma for income received from Crosby’s posthumous right of publicity. Because Wilma’s estate sued in 1996 and the case settled in 1998, appeals Judge Walter Croskey decided the recent lawsuit was barred by res judicata—a legal rule that the same case can’t be litigated twice.
The real story, however, isn’t what the court decided, but what it didn’t. Because the suit brought by Wilma’s estate was thrown out based on res judicata (also known as claim preclusion), the court never decided on the merits whether or not spouses are entitled to publicity rights income as community property.
Many states (including California) are community property states. When determining the minimum amount of property a person is entitled to upon the death of a spouse, community property calculations include all assets that the couple acquired during the marriage.
Though the court didn’t explicitly rule on whether income derived from Crosby’s right of publicity was community property, it specifically stated how it would have decided the issue. In a dense footnote spanning the final two pages of the decision, Judge Croskey observed that under California Family Code § 760, “community property” includes all property acquired during the marriage except as otherwise provided by statute.
The court did in fact find two statutes to the contrary, noting first that while California law grants a surviving spouse all community property in intestacy (when the deceased has no will), it only gives them one-half of their spouse’s publicity interests (the other half going to surviving children or grandchildren). In addition, while California family law prohibits spouses from giving gifts of community property without the other spouse’s consent, the state’s right of publicity is freely transferrable.
Because this footnote is not part of the court’s final holding, it should be considered dictum—a nonessential passage in the legal decision—with little (if any) legal force. However, it gives strong indication of the California court’s stand on the issue and potentially sets the stage for legal battles to come.
In New York, where the phrase “right of privacy” is used for a person’s control over the use of her name and likeness, the posthumous rights for spouses are simply not an issue.
Under New York law, the right of publicity is only protected for living persons and cannot pass to a spouse or descendant. New Yorkers’ estates—whether or not they include spouses—are not entitled to control the use of a decedent’s name and likeness. Filmmakers, advertisers and other interested parties are free to exploit the characteristics of a deceased New Yorker once he or she goes gently into that good night.
For those profiting from their name and likeness, geographic location makes a difference in the survivability of that cash flow. Before buying that retirement home in the Hamptons, you may want to consider Santa Barbara.