Making a dubious distinction between living and dead celebrities, a Los Angeles judge has refused to break new legal ground by ordering O.J. Simpson to give up his publicity rights to satisfy a $19.7 million wrongful-death judgment.

“[N]either the law, nor the limits of this court's equity jurisdiction, support outright transfer of a judgment debtor's inter vivos right of publicity,” Superior Court Judge Linda K. Lefkowitz said in denying a first-of-its-kind motion filed by the father of alleged Simpson murder victim Ron Goldman. “Inter vivos” means “during the life of.”

The motion sought a court order compelling Simpson to assign his publicity rights to Fred Goldman, arguing that the right of publicity is an “assignable property right” that “can and should be utilized to satisfy the civil judgment” won by Goldman after a 1997 jury trial.

While California law recognizes that publicity rights “are property rights, freely transferrable” after a celebrity's death, Lefkowitz said privacy protections prevent the same principle from being applied to the rights of a living celebrity.

“Although assignable during lifetime, and thus bearing at least one characteristic of a property right, the nature of the publicity right during the lifetime of the celebrity is equally characterized by privacy rights which mitigate against court-enforced transfer of the right to obtain commercial profit from his or her likeness,” she said in a 15-page ruling.

But since the landmark decision in Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (1953), courts have, in fact, separated the right of privacy from the right of publicity. While privacy rights are “personal” -- meaning they cannot be assigned or transferred to anyone else, and have no intrinsic economic value –- publicity rights have been conceived as a form of intellectual property for commercial exploitation.

Lefkowitz relied heavily on the California Supreme Court's discussion of publicity rights in Lugosi v. Universal Pictures, 25 Cal.3d 813 (1979). The court, she noted, rejected precedent “holding that 'name and likeness' are property,” and

distinguished the personal right of a celebrity during his or her lifetime from the “property right” which accrues to certain described survivors of the celebrity upon death.

Lugosi, however, held only that “The very decision to exploit name and likeness is a personal one” without addressing whether the celebrity, in effect, waives privacy by deciding to license publicity rights for commercial exploitation. It also said the survivors of a celebrity could not exploit publicity rights unless the celebrity had exercised them “inter vivos.”

The California Legislature quickly trumped Lugosi by making publicity rights descendible no matter whether the celebrity used them or not –- a clear rebuke of the notion that “the right to exploit name and likeness is personal to the artist.”

Goldman attorney Jonathan G. Polak (Sommer & Barnard, Indianapolis) intends to appeal, saying, “This is but one more chapter in the otherwise long story of the Goldman family's quest for justice against O.J. Simpson.”

By Matthew Heller
11/5/06