25 Cal. 3d 813, 160 Cal. Rptr. 323, 603 P.2d 425
Bela Lugosi and Universal Pictures Company, Inc. concluded an agreement in September 1930 for the production of the film Dracula in which Lugosi contracted to and did play the title role.1 Paragraph 4 of the agreement granted Universal the right to photograph and exploit in connection with the photoplay any and all of the artist's acts, poses, plays and appearances and the right to use and give publicity to the artist's name and likeness in connection with the advertising and exploitation of the photoplay.2
Lugosi died in 1956.3 Commencing in 1960 Universal entered into many licensing agreements which authorized licensees to use the Count Dracula character in connection with the sale of commercial merchandising products such as plastic model kits, masks, posters, candy dispensers, T-shirts, and beverage stirring rods.4 The licensing agreements specifically authorized the use of Lugosi's likeness from his portrayal of Count Dracula in Dracula and Dracula's Daughter.5
On February 3, 1966, Lugosi's widow Hope Linninger Lugosi and surviving son Bela George Lugosi filed a complaint against Universal alleging that they were the heirs of Bela Lugosi and that Universal had appropriated property which they had inherited from Lugosi and which was not embraced in paragraph 4 of the 1930 agreement.6 The complaint sought damages, an accounting of profits, and an injunction against further licensing without their consent.7
The trial court found that the essence of the thing licensed by Universal was the uniquely individual likeness and appearance of Bela Lugosi in the role of Count Dracula.8 It concluded that Lugosi had a protectable property right in his facial characteristics and individual manner of likeness and appearance as Count Dracula that descended to his heirs under his will.9 The court awarded plaintiffs $53,023.23 in damages for licensing agreements executed after February 3, 1964, and issued a permanent injunction against further unauthorized licensing of Lugosi's likeness as Count Dracula on commercial products.10
Universal appealed.11 The Supreme Court of California granted a hearing, conducted an independent study of the issues, and adopted the opinion of the Court of Appeal, Second Appellate District, as its own after appropriate deletions and additions.12
Whether Bela Lugosi's heirs possess a descendible property right in his name and likeness that can be asserted against unauthorized commercial merchandising of products?13
The right of publicity is the right to control the commercial use of one’s name and likeness.14 It is a property right which is transferable and which may be asserted by the heirs of the person whose name and likeness are involved.15 However, the right of publicity is a property right which exists only during the lifetime of the person whose name and likeness are involved, unless that person has exploited the right during his lifetime.1617
No. In September 1930, Bela Lugosi and Universal Pictures Company, Inc. concluded an agreement for the production of the film Dracula in which Lugosi contracted to and did play the title role. Paragraph 4 of the agreement granted Universal the right to photograph and exploit in connection with the photoplay any and all of the artist's acts, poses, plays and appearances and the right to use and give publicity to the artist's name and likeness in connection with the advertising and exploitation of the photoplay. Lugosi died in 1956. Commencing in 1960 Universal entered into many licensing agreements which authorized licensees to use the Count Dracula character in connection with the sale of commercial merchandising products such as plastic model kits, masks, posters, candy dispensers, T-shirts, and beverage stirring rods.
The licensing agreements specifically authorized the use of Lugosi's likeness from his portrayal of Count Dracula in Dracula and Dracula's Daughter. On February 3, 1966, Lugosi's widow Hope Linninger Lugosi and surviving son Bela George Lugosi filed a complaint against Universal alleging that they were the heirs of Bela Lugosi and that Universal had appropriated property which they had inherited from Lugosi and which was not embraced in paragraph 4 of the 1930 agreement. The complaint sought damages, an accounting of profits, and an injunction against further licensing without their consent. The trial court found that the essence of the thing licensed by Universal was the uniquely individual likeness and appearance of Bela Lugosi in the role of Count Dracula.
It concluded that Lugosi had a protectable property right in his facial characteristics and individual manner of likeness and appearance as Count Dracula that descended to his heirs under his will. The court awarded plaintiffs $53,023.23 in damages for licensing agreements executed after February 3, 1964, and issued a permanent injunction against further unauthorized licensing of Lugosi's likeness as Count Dracula on commercial products. Universal appealed. The Supreme Court of California granted a hearing, conducted an independent study of the issues, and adopted the opinion of the Court of Appeal, Second Appellate District, as its own after appropriate deletions and additions.
Applying the rule, there is no allegation in the complaint, no evidence in the record, and no finding of the court that Lugosi in his lifetime alone or with others used his name and/or likeness as Dracula or otherwise in connection with any business, product or service so as to impress a secondary meaning on such business, product or service.18 The court found that Bela Lugosi had not exploited his name and likeness for commercial purposes during his lifetime in connection with the merchandising of products.19 There is no evidence that Bela Lugosi had ever licensed or assigned the right to use his name or likeness in connection with the sale of merchandise.20
Bela Lugosi's heirs do not possess a descendible property right in his name and likeness that can be asserted against unauthorized commercial merchandising of products.21
Related opinions on this issue
Joined by Tobriner, J., And Manuel, J.
Chief Justice Bird dissents from the holding that the right of publicity is not descendible in the absence of exploitation during the lifetime of the celebrity.22 The right of publicity is a property right which should be descendible regardless of whether the celebrity exploited that right during his or her lifetime.23 The majority’s rule creates an artificial distinction which is not supported by logic or policy.24
The commercial value of a celebrity’s name and likeness often does not become apparent until after the celebrity’s death.25 To deny the heirs the right to control the commercial exploitation of that name and likeness is to deprive them of a valuable property interest.26 The judgment should be reversed.27
Whether the right to exploit one's name and likeness for commercial purposes survives death only if the individual exploited that right during his lifetime?28
The right of publicity is a property right which exists only during the lifetime of the person whose name and likeness are involved, unless that person has exploited the right during his lifetime. Such a right of value to create a business, product or service of value is embraced in the law of privacy and is protectable during one's lifetime but it does not survive the death of Lugosi.29
Yes. The court distinguished this case from those in which the celebrity had exploited his name and likeness for commercial purposes during his lifetime.30 In such cases, the right may be descendible.31 Here, however, there was no evidence that Bela Lugosi had ever licensed or assigned the right to use his name or likeness in connection with the sale of merchandise.32
The very decision to exploit name and likeness is a personal one.33 It is not at all unlikely that Lugosi and others in his position did not during their respective lifetimes exercise their undoubted right to capitalize upon their personalities.34 They might transfer the value thereof into some commercial venture for reasons of taste or judgment. The enterprise to be organized might be too demanding or they simply did not want to be bothered.35 It seems rather novel to urge that because one's immediate ancestor did not exploit the flood of publicity and/or other evidence of public acceptance he received in his lifetime for commercial purposes. The opportunity to have done so is property which descends to his heirs.36
The right to exploit one's name and likeness for commercial purposes survives death only if the individual exploited that right during his lifetime.37
Related opinions on this issue
Joined by Tobriner, J., And Manuel, J.
Chief Justice Bird dissents from the limitation that the right survives death only if exploited during lifetime.38 The right of publicity is a property right which should be descendible regardless of whether the celebrity exploited that right during his or her lifetime. The majority’s rule creates an artificial distinction which is not supported by logic or policy.
The commercial value of a celebrity’s name and likeness often does not become apparent until after the celebrity’s death. To deny the heirs the right to control the commercial exploitation of that name and likeness is to deprive them of a valuable property interest.
Whether the 1930 employment contract between Bela Lugosi and Universal granted Universal the right to license Lugosi's likeness as Count Dracula for the sale of commercial merchandising products?39
The producer shall have the right to photograph and/or otherwise produce, reproduce, transmit, exhibit, distribute, and exploit in connection with the said photoplay any and all of the artist's acts, poses, plays and appearances of any and all kinds hereunder, and shall further have the right to record, reproduce, transmit, exhibit, distribute, and exploit in connection with said photoplay the artist's voice, and all instrumental, musical, and other sound effects produced by the artist in connection with such acts, poses, plays and appearances.40 The producer shall likewise have the right to use and give publicity to the artist's name and likeness, photographic or otherwise, and to recordations and reproductions of the artist's voice and all instrumental, musical, and other sound effects produced by the artist hereunder, in connection with the advertising and exploitation of said photoplay.41
No. The contract was silent as to the use of Lugosi’s name or likeness in connection with the sale of merchandise.42 The trial court interpreted the grant-of-rights provision in the 1930 contract to authorize Universal to photograph and record Lugosi's portrayal of Count Dracula in Dracula, to distribute the resulting motion picture, and to publicize Lugosi's name, likeness, acts and appearances in connection with advertising the motion picture.43 However, Universal's commercial licensing agreements were found to have been completely separate and apart from any advertising concerning the re-release of Dracula to movie theaters or its broadcast on television.44 Further, the trial court concluded that Lugosi did not otherwise grant to Universal the right to exploit his portrayal of Count Dracula in connection with the sale of commercial products.45
The extrinsic evidence presented to the trial court supports that construction.46
The 1930 employment contract between Bela Lugosi and Universal did not grant Universal the right to license Lugosi's likeness as Count Dracula for the sale of commercial merchandising products.47
Whether an actor's right to control commercial use of his likeness extends to his portrayal of a fictional character created by a novelist and produced by a motion picture studio?48
Merely playing a role under the foregoing circumstances creates no inheritable property right in an actor, absent a contract so providing.49 An original creation of a fictional figure played exclusively by its creator may well be protectible.50 Thus Groucho Marx just being Groucho Marx, with his moustache, cigar, slouch and leer, cannot be exploited by others.51 Here it is clear that Bela Lugosi did not portray himself and did not create Dracula, he merely acted out a popular role that had been garnished with the patina of age, as had innumerable other thespians over the decades.52
No. Bela Lugosi was a talented actor.5354 But he was an actor, a practitioner of the thespian arts; he was not a playwright, an innovator, a creator or an entrepreneur.55 As an actor he memorized lines and portrayed roles written for him, albeit with consummate skill.56 In this instance the part he played was that of Count Dracula, a legendary character out of the novel originated by Bram Stoker, first published in England in 1897, and adapted for the screen by writers employed by Universal Pictures.57
Due to copyright omission, at all times involved herein the novel and its characters had been in the American public domain.58 Many other actors have portrayed the same role, notably Lon Chaney and John Carradine.59 Thus neither Lugosi during his lifetime nor his estate thereafter owned the exclusive right to exploit Count Dracula any more than Gregory Peck possesses or his heirs could possess common law exclusivity to General MacArthur.60
An actor's right to control commercial use of his likeness does not extend to his portrayal of a fictional character created by a novelist and produced by a motion picture studio.61
Related opinions on this issue
Justice Mosk concurs in the judgment.62 Factually and legally this is a remarkable case.63 Factually: not unlike the horror films that brought him fame, Bela Lugosi rises from the grave 20 years after death to haunt his former employer.64
Legally: his vehicle is a strained adaptation of a common law cause of action heretofore unknown either in a statute or case law in California.65 The plaintiffs, and my dissenting colleagues, erroneously define the fundamental issue, and consistently repeat their misconception.66 We are not troubled by the nature of Lugosi's right to control the commercial exploitation of his likeness.67
That right has long been established.68 The issue here is the right of Lugosi's successors to control the commercialization of a likeness of a dramatic character.69 It is Count Dracula, created by a novelist and portrayed for compensation by Lugosi in a film version produced by a motion picture company under license from the successor of the novelist.70 The error in discerning the problem pervades the trial court's conclusion.71 Inevitably one who asks the wrong question gets the wrong answer.72
Bela Lugosi was a talented actor. But he was an actor, a practitioner of the thespian arts; he was not a playwright, an innovator, a creator or an entrepreneur. Merely playing a role under the foregoing circumstances creates no inheritable property right in an actor, absent a contract so providing.