My very first KI2Y column on PopDose was this clever bit about how rights of publicity might attach to dead celebrities. Do rights to famous folk’s images survive their tragic demise, or do they rest in peace in Hollywood Forever Cemetery? Let’s revisit this question now because a recent decision has added a new twist to this already kooky area of intellectual property law. And, it involves our favorite Woodstock casualty, Jimi Hendrix!
My attractive and urbane readers know that there is no uniform federal right of publicity — the law varies widely all over the country. Just over half the states have rights of publicity laws protecting living stars; only a handful have laws pertaining to the deceased ones. In New York, post mortem rights of publicity law are not recognized at all. This is an important quirk for us because although Hendrix expired under dodgy circumstances in a London hotel, he was a resident of New York when he joined the 27 Club.
A little background: Hendrix was a favorite son of Seattle, Washington. (This was after he got famous — before that the authorities let him choose between the army and a jail sentence). In 1968 he was given an honorary high school diploma and the keys to the city. In 1997 Jimi was memorialized in a bronze action pose on the city’s Capitol Hill. Jimi Hendrix Park officially opened in 2006 in Seattle’s Central District. It’s just an open field for now, but dig these Bold As Love attractions the city hopes to install:
Very nice, but Jimi called New York City his home. He leased an apartment in this posh pre-war at 59 West 12th Street (later home to Cameron Diaz, Isaac Mizrahi, Marissa Tomei and Bebe Neuwirth, among others), just four blocks away from his own Electric Lady Studios on 8th Street in Greenwich Village.
When Hendrix died in 1970, his estate passed to his father, Al. With a little help from Microsoft zillionaire/guitar enthusiast Paul Allen, Al created the Jimi Hendrix Foundation as a Washington non-profit, in 1995. The Foundation eventually morphed into the very-much-for-profit Experience Hendrix, LLC, which owns Jimi’s music catalog, as well as certain trademarks such as his name and signature. For the past several years, Experience Hendrix has made a mint selling posters, t-shirts, guitar gear and, er, air fresheners all bearing the guitar god’s psychedelic likeness. The company isn’t shy about litigating to enforce its IP rights and, in 2009, sued Hendrixlicensing.com Ltd., a Nevada company that also hawks Hendrix-related merchandise. (Let’s call the two parties ”Experience” and ”Licensing” so we don’t get confused.)
Experience sued Licensing for trademark infringement under federal law, and on grounds that this infringement was a deceptive trade practice under Washington’s Consumer Rights Act. Licensing counter-claimed to assert that a third statute, Washington’s Personality Rights Act, was unconstitutional. It’s the WPRA that we care about because it was specifically designed to allow dead celebrities’ descendants to capitalize on their fame. In fact, the Washington legislature amended the WPRA so that it applied to all dead celebs ”regardless of place of domicile.” The amendment was a direct response to another publicity rights suit Experience lost (that one was against ”Electric Hendrix, LLC”), based on New York choice of law principles.
In the 2009 suit, Licensing asserted that the post-mortem publicity rights afforded by the WPRA were unconstitutional. In February 2011 (that’s how long lawsuits take) the District Court agreed, holding that the WPRA was unconstitutional because it allowed relatives of non-domiciled dead celebs to set up shop in Washington to take advantage of the state’s generous publicity law.
But earlier this year (that’s how long appeals take) the 9th Circuit Court of Appeals reversed the District Court’s ruling. Judge David Ebel explained that Washington may stone freely apply its own law to a dispute within its borders, and that doing so will not “affect transactions occurring wholly outside Washington.” The decision states that it only addresses the “limited controversy” of Experience’s rights to control sales in Washington. The judge wrote that the the WPRA “raises difficult questions” regarding whether other states need to pay attention to it, but punted on the larger issue of whether any other state would be bound by the decision. Then he set fire to a Stratocaster, which is very unusual behavior for a Circuit Court judge.
What’s it all mean? Crosstown Traffic caused by litigants racing to the courthouse to file suit? Manic Depression of rock memorabilia purveyors? Not necessarily. Experience Hendrix is a well-funded, very litigious company with a lot of extremely valuable rights to exploit. You can bet that its reps will be deployed All Along the Watchtowers of Washington’s borders for any unlicensed schmuck trying to sell Purple Haze wine coolers or Foxey Lady eyelash curlers. But the Ninth Circuit took pains to downplay the effects of its decision, observing that ”Washington has sufficiently significant contacts with the actual, non-speculative controversy at issue here,” i.e. goods sold in Washington featuring the iconic image of a homegrown legend that admittedly violated the WPRA. As noted above, many other states don’t even have any post-mortem rights of publicity laws — the coast is still clear in those markets for the hawking dead. So, although companies trafficking in expired celeb merch may think twice about what they ship to the Northwest, it’s not like there are loads of other Washington-born, left-handed rock guitar legends commemorated with life-sized statues that died at 27 who…Oh, well, whatever. Nevermind.
In fond memory of accomplished guitarist and Blackburn Rovers supporter, Pat McClure.