Calling the right of publicity an “assignable property right,” the father of murder victim Ron Goldman has embarked on a novel strategy for getting O.J. Simpson to satisfy part of a $19.7 million wrongful-death judgment.

There is no precedent for compelling a celebrity to assign publicity rights to a third party. But in a motion filed in Los Angeles County Superior Court, Fred Goldman says “the right of publicity ... can and should be utilized to satisfy the civil judgment after jury trial in this action.”

With accrued interest, the 1997 jury award to Goldman now exceeds $38 million. Winning control of Simpson's right to profit from the use of his name and likeness “may be the only way for Frederic Goldman to effectively enforce his judgment against Simpson,” the motion says.

Goldman cites, among other things, a California Supreme Court case which held that a court may compel a patent owner to assign all his right in a patent to satisfy a judgment. A California statute, moreover, says a court may assign to a judgment creditor “Payments due from a patent or copyright.”

Some courts have, indeed, recognized the right of publicity as an assignable property right equivalent to intellectual property rights such as patent and copyright.

But two intellectual property experts have argued that trademark law “is by far the closest analogy to the right of publicity” because “Both laws are concerned not with the encouragement of new creation, like other forms of IP rights, but with the protection of names in the context of commercial uses.”

In a Stanford Law Review article, Stacey L. Dogan and Mark A. Lemley went on to question whether there is a theoretical case for creating a property right over trademarks or publicity rights:

[I]f we must recognize a right of publicity because someone’s persona is inherently their own, it makes little sense to treat it as property that can be sold freely.

According to Goldman, Simpson still makes a “substantial” amount of money from public appearances and sales of autographed memorabilia. The “motion for order transferring and assigning [Simpson's] right of publicity” is scheduled to be heard Oct. 17.

By Matthew Heller
9/5/06