‘Dead celebrity’ bill awaits California governor’s signature

Wednesday, September 29, 1999

A measure designed to protect the images of deceased celebrities from commercial exploitation sailed through the California Assembly and Senate this month and now awaits approval from Gov. Gray Davis.

The legislation, known as the Fred Astaire bill, cleared the Assembly earlier this month with a 75-1 vote and garnered unanimous support in the Senate. The bill was sent to Davis last week.

Many free-speech advocates have withdrawn their opposition to the bill, saying recent amendments restored “fair use” protections to the legislation. The law, they said, would allow the use of images of dead celebrities for legitimate news and entertainment purposes as long as the owner of the intellectual property would not lose royalties as a result.

The bill stems from a decade-old lawsuit filed by Astaire's widow against the publisher of an instructional dance video. Robyn Astaire contended that New York-based Best Film & Video Corp. violated a 1984 California law that forbids the use of a dead person's image without express permission from the star's survivors.

In 1997, the 9th U.S. Circuit Court of Appeals decided in favor of the video company, saying it could use some brief clips from two Astaire movies in the dance video.

Stymied by the courts, Robyn Astaire appealed to California lawmakers.

With the support of the Screen Actors Guild, state Sen. John Burton, D-San Francisco, drafted Senate Bill 209, a measure that would give heirs control over the commercial use of a famous person's name, image, voice or signature for 70 years after death instead of the current 50 years.

The bill also would allow heirs to challenge the use of a relative's name or image in California courts, even when the VIP did not live in the state at the time of death.

Burton's initial drafts of the Astaire bill irked many in the entertainment and news industries who said the measure would remove significant First Amendment protection from legitimate uses of such images.

Specifically, groups including the Motion Picture Association of America and various news organizations said the bill would have eliminated a series of exceptions in current law, allowing a dead celebrity's image to be used in a book, play, magazine, song, film, newspaper or television program without the heirs' permission.

“The first bill would have allowed those with the registered rights of a deceased celebrity's estate to sue someone not only for use of the image but also for any use contrary of fact,” said Terry Francke, general counsel for the California First Amendment Coalition.

“There was literally no way, by the way the bill was written, that you could tell a story where, say, Fred Astaire was involved in a crossword puzzle contest,” Francke said. “It's not defamatory at all, but there's no debate over whether it happened.”

But Francke said the legislature adequately restored fair-use protections before it approved the bill.

“Very narrow corrections were made which, essentially, say that the safe zones in those various media would continue … unless there was use of a name or an image for commercial purposes,” he said.

Burton did not return calls.