Reynolds v. Reynolds ( 2014 )

  •                                  IN THE
                  ARIZONA COURT OF APPEALS
                                  DIVISION ONE
                          In the Matter of the Estate of:
                   LOIS CATHERINE REYNOLDS, Deceased.
                        SYLVIA REYNOLDS, as Personal
                         Representative of the Estate of
                  Lois Catherine Reynolds, Petitioner/Appellant,
                    ROBIN REYNOLDS, Respondent/Appellee.
                              No. 1 CA-CV 13-0274
                               FILED 04/24/2014
              Appeal from the Superior Court in Maricopa County
                             No. PB2011-000192
              The Honorable Geoffrey H. Fish, Judge Pro Tempore
    Fennemore Craig, PC, Phoenix
    By Timothy J. Berg, Ray K. Harris, Jacob J. Cranston
    Counsel for Petitioner/Appellant
    Jaburg & Wilk, PC, Phoenix
    By Lauren L. Garner, Maria Crimi Speth
    Counsel for Respondent/Appellee
                             REYNOLDS v. REYNOLDS
                               Opinion of the Court
    Chief Judge Diane M. Johnsen authored the opinion of the Court, in which
    Acting Presiding Judge Patricia K. Norris and Judge Maurice Portley
    J O H N S E N, Judge:
    ¶1            Robin Reynolds wrote two online commentaries about her
    mother Lois, one describing her own reaction to her elderly mother's
    diminished quality of life, and the other, a fond Mother's Day
    remembrance after her mother had died. Robin's sister, Sylvia, personal
    representative of their mother's estate, objected to Robin's writings and
    listed a claim against Robin for violation of Lois's right of publicity on her
    inventory of the assets of the estate. After Robin protested, the superior
    court disallowed the claim, ruling the estate had "no Right of Publicity."
    ¶2             We hold that a right of publicity exists under Arizona law
    and that it may be enforced by one's estate after death. We affirm the
    superior court's order, however, because we conclude that, as a matter of
    law, Robin's commentaries do not give rise to a claim for a violation of
    Lois's right of publicity.
    ¶3            Robin's article for an online magazine in August 2010 was
    titled "I Want to Die Like a Dog: Poignant Insights on Aging Gracefully." In it,
    Robin described her aging mother's daily challenges with independent
    living. Robin wrote that although her mother claimed she did not want to
    burden her children, she had made no care plans for herself and as a
    result, called on Robin for help with all manner of problems. Robin
    observed that "[r]egardless of the magnitude of [her mother’s] mishaps, I
    am expected to respond promptly with little regard for how stressful these
    episodes" were for Robin and her family. Robin concluded that she had
    resolved not to leave these "agonizing decisions" to her own child. She
    closed by saying she wished to age gracefully and "die like [her] dog," "not
    expecting anything, but happy and grateful for every kindness" she
                            REYNOLDS v. REYNOLDS
                              Opinion of the Court
    ¶4            Lois passed away in January 2011. In her will, she named as
    heirs her children – Robin, Sylvia and their brother, Doug. In April 2011,
    Doug wrote to Robin saying he and Sylvia were "shocked, hurt and
    deeply angry" to discover Robin's online account about their mother. He
    demanded Robin remove the commentary and promise to refrain from
    writing anything else about their family "either in non-fiction or 'fictional
    form.'" Shortly thereafter, through counsel and as personal representative,
    Sylvia asked Robin to sign an agreement to refrain from making any
    “[p]ublication actually or reasonably perceived to be about or relating to
    Lois (including without limitation Lois's name, likeness and description . .
    .).” Robin refused to sign the agreement, and on Mother's Day a few
    weeks later, posted a blog tribute to Lois that included a photograph of
    herself with her mother.
    ¶5            When Sylvia issued an inventory of the estate, it included an
    entry labeled "Estate claim against Robin Reynolds [] for Right of Publicity
    in the name of Lois Catherine Reynolds." Robin filed a petition to compel
    closure of the estate, arguing it could not assert any purported right of
    publicity on behalf of Lois. After briefing, the superior court ruled the
    estate had no claim against Robin.
    ¶6           The estate timely appealed. This court has jurisdiction
    pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
    Revised Statutes ("A.R.S.") section 12-2101(B) (2014). 1
                 A.    The Right of Publicity: General Principles.
    ¶7           Violation of the right of publicity, also termed
    "appropriation," originally was one of the four varieties of invasion of
    privacy. See Restatement (Second) of Torts §§ 652A, 652C (1977); William
    L. Prosser, Privacy, 
    48 Cal. L
    . Rev. 383, 389 (1960). 2 Arizona long has
    1     Absent material revision after the relevant date, we cite a statute's
    current version.
    2      Whether a right of publicity exists in Arizona is a question of law
    that we review de novo. See Calisi v. Unified Financial Servs., LLC, 
    232 Ariz. 103
    , 106, ¶ 13, 
    302 P.3d 628
    , 631 (App. 2013). "Thus we are not constrained
    by the legal conclusions . . . of the [superior] court." Enterprise Leasing Co.
    of Phoenix v. Ehmke, 
    197 Ariz. 144
    , 148, ¶ 11, 
    3 P.3d 1064
    , 1068 (App. 1999).
                             REYNOLDS v. REYNOLDS
                               Opinion of the Court
    recognized a common-law right of privacy, see Reed v. Real Detective Publ'g
    63 Ariz. 294
    , 305, 
    162 P.2d 133
    , 138 (1945), allowing claims based on
    each of the three other forms of invasion of privacy. See id. (publication of
    private facts); Hart v. Seven Resorts Inc., 
    190 Ariz. 272
    , 279, 
    947 P.2d 846
    853 (App. 1997) (intrusion upon seclusion); Godbehere v. Phoenix
    Newspapers, Inc., 
    162 Ariz. 335
    , 342, 
    783 P.2d 781
    , 788 (1989) (false light).
    ¶8            The "right of publicity" at issue here is defined by the
    Restatement (Third) of Unfair Competition ("Restatement Third") § 46
    (1995) as the right to the "commercial value of a person's identity." Under
    this provision, "[o]ne who appropriates the commercial value of a person's
    identity by using without consent the person's name, likeness, or other
    indicia of identity for purposes of trade is subject to liability" for resulting
    damages. Id. As the Restatement Third explains:
           Like the right of privacy, the right of publicity protects an
           individual's interest in personal dignity and autonomy.
           With its emphasis on commercial interests, the right of
           publicity also secures for plaintiffs the commercial value of
           their fame and prevents the unjust enrichment of others
           seeking to appropriate that value for themselves. The right
           to prohibit unauthorized commercial exploitation of one's
           identity allows a person to prevent harmful or excessive
           commercial use that may dilute the value of the identity.
           Although proof of deception or confusion is not an element
           of liability under this Section, the right of publicity indirectly
           affords protection against false suggestions of endorsement
           or sponsorship.
    Id. cmt. c.
    ¶9             One of the earliest cases acknowledging the right of
    publicity was Zacchini v. Scripps-Howard Broadcasting Co., 
    433 U.S. 562
    (1977). The plaintiff was an entertainer with "a 'human cannonball' act in
    which he is shot from a cannon into a net some 200 feet away." Id. at 563.
    He sued a television station that recorded his 15-second act at a fair and
    broadcast it in its entirety without his consent. Id. at 564. Acknowledging
    the plaintiff's right under state law to the "professional property" of his
    act, the Supreme Court held the television station had no First
    Amendment right to appropriate the act by broadcasting it without his
    consent. Id. at 575-77. Key to the Court's decision was that the television
    station effectively had stolen the commercial value of the plaintiff's act:
                            REYNOLDS v. REYNOLDS
                              Opinion of the Court
           If under this standard respondent had merely reported that
           petitioner was performing at the fair and described or
           commented on his act, with or without showing his picture
           on television, we would have a very different case. But
           petitioner is not contending that his appearance at the fair
           and his performance could not be reported by the press as
           newsworthy items. His complaint is that respondent filmed
           his entire act and displayed that film on television for the
           public to see and enjoy.
    Id. at 569.
    ¶10            Rooted in recognition of the commercial value of an
    individual's name or likeness, the right of publicity is in the nature of a
    property right. Restatement Third § 46 cmt. g. Accordingly, the tort of
    appropriation affords redress of commercial injuries, by contrast to
    personal injuries of the sort remedied by a claim for, e.g., invasion of
    privacy by intrusion or publication of private facts. Id. cmt. a; see Haelan
    Labs. Inc. v. Topps Chewing Gum, Inc., 
    202 F.2d 866
    , 868 (2d Cir. 1953)
    (distinguishing personal right of privacy, which might give rise to a claim
    for personal injuries for hurt feelings caused by publication of one's
    picture, from that person's "right in the publicity value of his photograph,
    i.e., the right to grant the exclusive privilege of publishing his picture");
    Uhlaender v. Henricksen, 
    316 F. Supp. 1277
    , 1280 (D. Minn. 1970) (by
    contrast to the three other traditional forms of invasion of privacy, a claim
    for appropriation generally considered to involve a pecuniary loss, an
    interference with property).
    ¶11            The right of publicity "is most often invoked to protect the
    value associated with the identity of a celebrity." Restatement Third § 46
    cmt. d.      Indeed, appropriation claims typically arise out of the
    unauthorized use of a well-known person’s name or likeness in
    connection with the advertising of goods or services. See, e.g., Carson v.
    Here's Johnny Portable Toilets, Inc., 
    698 F.2d 831
     (6th Cir. 1983); Palmer v.
    Schonhorn Enters., Inc., 
    232 A.2d 458
     (N.J. Super. Ct. Ch. Div. 1967); State ex
    rel. Elvis Presley Int'l Mem'l Found. v. Crowell, 
    733 S.W.2d 89
    , 97 (Tenn.
    App. 1987). But "the identity of even an unknown person may possess
    commercial value." Restatement Third § 46, cmt. d ("evaluation of the
    relative fame of the plaintiff is more properly relevant to the
    determination of appropriate relief"). See Cont'l Optical Co. v. Reed, 
    86 N.E.2d 306
    , 310 (Ind. App. 1949) (claim brought by Army optician);
    Canessa v. J.I. Kislak, Inc., 
    235 A.2d 62
    , 75 (N.J. Super. 1967) (family
    searching for home to rent).
                            REYNOLDS v. REYNOLDS
                              Opinion of the Court
    ¶12           In the absence of Arizona law to the contrary, we generally
    follow the Restatement. Espinoza v. Schulenburg, 
    212 Ariz. 215
    , 217, ¶ 9,
    129 P.3d 937
    , 939 (2006). We see no reason to depart from the Restatement
    Third in this matter, and therefore hold that an individual has a right of
    publicity that protects his or her name and/or likeness from appropriation
    for commercial or trade purposes.
                 B.   Violation of a Decedent's Right of Publicity.
    ¶13           Citing A.R.S. § 14-3110 (2014), Robin argues a claim for
    violation of an individual's right of publicity does not survive the
    individual's death. In relevant part, the statute states, "Every cause of
    action, except a cause of action for damages for breach of promise to
    marry, seduction, libel, slander, separate maintenance, alimony, loss of
    consortium or invasion of the right of privacy, shall survive the death of
    the person" entitled to relief. A.R.S. § 14-3110. Robin argues the statute
    bars the estate's claim for violation of the right of publicity because the
    tort originated as a variety of invasion of privacy.
    ¶14           To determine whether § 14-3110's reference to an action for
    "invasion of the right of privacy" encompasses a claim for violation of the
    right of publicity, we first look to the language of the statute itself. When
    the language of a statute is clear and unambiguous, we give effect to its
    plain language. Bilke v. State, 
    206 Ariz. 462
    , 464, ¶ 11, 
    80 P.3d 269
    , 271
    ¶15           On its face, § 14-3110 does not refer to a claim for violation of
    the right of publicity. The omission is logical: The statute excepts from the
    general rule of survival only a handful of deeply personal claims, and, as
    we have stated, the right of publicity is more akin to a property right, the
    breach of which is measured by resulting pecuniary loss, than a personal
    right whose violation results in emotional injury. See Toffoloni v. LFP
    Publ'g Group, LLC, 
    572 F.3d 1201
    , 1205 (11th Cir. 2009) (right of publicity is
    "characterized by an economic concern that individuals be allowed to
    control the use of their image in order to maximize the profit they can
    receive from its publication"); Cardtoons, L.C. v. Major League Baseball
    Players Ass'n, 
    95 F.3d 959
    , 967 (10th Cir. 1996) ("right of publicity involves
    a cognizable property interest"); Ventura v. Titan Sports, Inc., 
    65 F.3d 725
    730 (8th Cir. 1995) ("[T]he right of publicity differs substantially from the
    right to privacy . . . . The right to publicity protects pecuniary, not
    emotional, interests."); Carson, 698 F.2d at 838 ("[T]he right of publicity
    vindicates the economic interests of celebrities, enabling those whose
    achievements have imbued their identities with pecuniary value to profit
                             REYNOLDS v. REYNOLDS
                               Opinion of the Court
    from their fame.") (citations omitted); J. Thomas McCarthy, The Rights of
    Publicity and Privacy § 1:7 (2d ed. 2013) (right of publicity is a property
    right whose origin is in unfair competition, intellectual property and tort
    ¶16           On the other hand, the exception afforded by § 14-3110 to
    claims for invasion of privacy from the general rule of survival is
    consistent with the principle that, as a personal action, a claim for invasion
    of privacy may be asserted only by the individual whose privacy has been
    infringed. As the Restatement (Second) of Torts states,
           The right protected by the action for invasion of privacy is a
           personal right, peculiar to the individual whose privacy is
           invaded. The cause of action is not assignable, and it cannot
           be maintained by other persons such as members of the
           individual's family, unless their own privacy is invaded
           along with his.
    Restatement (Second) of Torts § 652 cmt. a (1977).
    ¶17             But even when appropriation, or violation of the right of
    publicity, was treated as a variety of invasion of privacy, the Restatement
    (Second) of Torts expressly allowed such a claim to survive the death of
    the holder. See Restatement (Second) of Torts § 652(I) cmt. a ("The only
    exception to this rule [that a claim does not survive the holder's death]
    involves the appropriation to the defendant's own use of another's name
    or likeness.").
    ¶18           Accordingly, we conclude § 14-3110 does not except from
    the general rule of survival a cause of action for violation of an
    individual's right of publicity. For that reason, a claim arising from
    Robin's original online commentary, published while Lois was living, may
    survive her mother's death.
    ¶19            The estate also asserts that Robin's Mother's Day post, which
    was published after Lois's death, violated her right of publicity. Robin
    contends the right of publicity is not descendible, so that the estate may
    not assert a claim that arose after Lois's death.
    ¶20            As a property right, however, the right of publicity is "freely
    assignable," and an assignment "transfers ownership to the assignee, who
    has standing to assert the right against others." Restatement Third § 46
    cmt. g; see Bi-Rite Enters., Inc. v. Bruce Miner Co., Inc., 
    757 F.2d 440
    , 442 (1st
    Cir. 1985) ("As a commercial, rather than a personal right, [the right of
                             REYNOLDS v. REYNOLDS
                               Opinion of the Court
    publicity] is fully assignable."). Consistent with that principle, we hold
    the right of publicity is descendible, and therefore may be enforced by a
    decedent's estate. Restatement Third § 46 cmt. h (majority of jurisdictions
    hold right of publicity is descendible, although "scope of permissible use
    by others may be greater in the case of post mortem publicity rights"). See,
    e.g., Hebrew Univ. of Jerusalem v. General Motors LLC, 
    878 F. Supp. 2d 1021
    1031 (C.D. Cal. 2012); Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v.
    Am. Heritage Products, Inc., 
    296 S.E.2d 697
    , 705 (Ga. 1982); Elvis Presley Int'l
    Mem'l Found., 733 S.W.2d at 97-98 (listing cases).
    ¶21           Robin argues a postmortem right of publicity should exist
    only if the decedent exploited such a right during his or her lifetime. The
    Restatement rule is to the contrary. Restatement Third § 46 cmt. h
    ("Although commercial exploitation prior to death can be relevant in
    establishing the value of the appropriated identity, it should not be
    required as a condition of descent."); see J. Thomas McCarthy, The Rights of
    Publicity and Privacy § 9:17 ("The overwhelming majority rule under either
    statute or common law is that the right of publicity is descendible
    property and has a postmortem duration which is not conditioned on
    lifetime exploitation."). 3
    ¶22           For these reasons, we hold an estate's right to assert the
    decedent's right of publicity is not conditioned on exploitation of the right
    during the decedent's life.
    C.     The Commentaries Do Not Violate the Estate's Right of Publicity.
    ¶23           Finally, Robin argues that even if the right of publicity is
    descendible, the estate has no valid claim because her commentaries were
    expressive works squarely exempted from liability under the Restatement
    Third § 47.
    3       Although some courts condition the descendibility of the right of
    publicity on exploitation of the right during the decedent's life, see, e.g.,
    Sinkler v. Goldsmith, 
    623 F. Supp. 727
    , 733-34 (D. Ariz. 1985); Hicks v.
    Casablanca Records, 
    464 F. Supp. 426
    , 429 (S.D.N.Y. 1978); Nature's Way
    Products, Inc. v. Nature-Pharma, Inc., 
    736 F. Supp. 245
    , 252 (D. Utah 1990);
    Lugosi v. Universal Pictures, 
    603 P.2d 425
    , 431 (Cal. 1979); those cases lack
    analysis of that issue and are not persuasive. See 2 J. Thomas McCarthy,
    The Rights of Publicity and Privacy § 9:14 ("it seems apparent that the
    'lifetime exploitation' requirement appeared out of nowhere in the case
    law and was parroted by courts thereafter").
                            REYNOLDS v. REYNOLDS
                              Opinion of the Court
    ¶24           The Restatement Third § 46 provides a cause of action
    against one who appropriates the commercial value of a person's identity
    "for purposes of trade," meaning, for example, "in advertising the user's
    goods or services." Id. § 47. Under this rule, "use 'for purposes of trade'
    does not ordinarily include the use of a person's identity in news
    reporting, commentary, entertainment, works of fiction or nonfiction, or in
    advertising that is incidental to such uses." Id. Sylvia and Doug object to
    Robin's writings because they disclose personal details about their mother.
    Viewed in that fashion, however, the commentaries are on the order of an
    unauthorized biography, which plainly may not give rise to a claim for
    violation of the right of publicity. See, e.g., Matthews v. Wozencraft, 
    15 F.3d 432
    , 439 (5th Cir. 1994); Uhlaender, 316 F. Supp. at 1282; Frosch v. Grosset &
    Dunlap, Inc., 
    75 A.D.2d 768
    , 768-69 (N.Y. App. Div. 1980) (sensationalized
    biographical account of the life of Marilyn Monroe); see also Montgomery v.
    60 S.W.3d 524
    , 526, 528 (Ky. 2001) (son's use of deceased
    father's image in music video not actionable).
    ¶25            The estate further argues that because Robin published her
    commentaries for a financial benefit, they constitute the unauthorized use
    of Lois’s name or likeness for commercial purposes. We conclude
    otherwise. The Restatement Third § 47 makes clear that the mere sale of
    an expressive work that uses one's likeness or name does not constitute
    use of the other's identity "for purposes of trade" as required to give rise to
    a claim for relief. Id. at cmt. c ("The fact that the publisher or other user
    seeks or is successful in obtaining a commercial advantage from an
    otherwise permitted use of another's identity does not render the
    appropriation actionable."). Indeed, all of the activities excepted from the
    definition of "for purposes of trade" are conducted, at least in part, for
    financial gain: News reporting, entertainment and works of fiction or
    nonfiction. Id.; see also Ann-Margaret v. High Soc'y Magazine, Inc., 498 F.
    Supp. 401, 406 (S.D.N.Y. 1980) (use of plaintiff's image in a magazine
    article "published and sold for profit" was not actionable); Rosemont
    Enters., Inc. v. Random House, Inc., 
    294 N.Y.S.2d 122
    , 128-29 (N.Y. Sup. Ct.
    1968) (use of Agatha Christie's name and likeness in fictionalized
    biography did not violate right of publicity even though publisher sought
    to profit from book sales). 4
    4     The estate argues Robin published her on-line commentaries on a
    website generally devoted to promoting a book Robin had written about
    her dog. The commentaries, however, contained Robin's personal
                            REYNOLDS v. REYNOLDS
                              Opinion of the Court
    ¶26            We hold that Arizona recognizes a right of publicity. The
    right is descendible, and a claim for violation of the right survives the
    death of the holder. It is not limited to celebrities and it need not be
    exploited during life to be asserted in death. We affirm the superior
    court's ruling, however; as a matter of law, Robin’s commentaries do not
    give rise to a claim for relief because they are expressive works that do not
    employ Lois’s name or likeness for purposes of trade. See Hale v.
    Amphitheater Sch. Dist. No. 10, 
    192 Ariz. 111
    , 114, ¶ 5, 
    961 P.2d 1059
    , 1062
    (App. 1998) (court of appeals may affirm superior court's ruling if correct
    for any reason).
    reflections about her mother and thoughts about aging; neither concerned
    the book about her dog.