States have struggled to adequately define and protect an individual’s right to control the commercial use of his identity for the entirety of the right’s existence.1 In 2008, Washington became one of the latest states to engage with the right of publicity when it extended the reach of its Personality Rights Act (WPRA),2 which was recently featured at the center of litigation concerning the right to iconic guitarist Jimi Hendrix’s image and personality. The Ninth Circuit’s holding in Experience Hendrix L.L.C. v. Hendrixlicensing.com Ltd3 announced the end of this protracted dispute: by finding that Washington’s statute could constitutionally be applied to the controversy even though Jimi Hendrix was domiciled in New York at the time of his death, the court granted property rights to Hendrix’s heirs that, under New York law, remain part of the public domain. While on its face the opinion seems to be a victory for the protection of personality rights, the WPRA’s imposition of Washington law on property that would otherwise be governed by New York law disrupts the traditional and previously stable rules relating to the right of publicity. The fact that the amended statute dictates and demands such a result reveals how the statute threatens to usher in a system in which one’s right to intangible property is nebulous and subject to possible forfeiture.
The Ninth Circuit’s ruling marks the culmination of a decade-long bout of litigation related to Jimi Hendrix’s right of publicity. After the musician died intestate in New York in 1970, his estate passed to his father, James Allen (“Al”) Hendrix,4 who assigned his rights to Experience Hendrix, L.L.C. and Authentic Hendrix, LLC (collectively, Experience).5 Experience purported to be “the sole authorized licensors of Jimi Hendrix performances, songs and publicity rights.”6 Yet when Experience challenged Jimi Hendrix’s brother Leon’s use of the rock legend’s name, signature, and image in 2005,7 both the Western District of Washington and the Ninth Circuit found that Experience did not possess the exclusive right to Jimi Hendrix’s personality.8 Though Washington law recognized the right, New York — Hendrix’s domicile at death — did not.9 Both courts resolved this conflict by following the default and near-universal practice of applying the law of an individual’s domicile at death to the issue of the survivability of his right of publicity, thus concluding that the right did not survive Hendrix’s passing.10
Within a year of and in direct response to these rulings,11 the Washington legislature revised the WPRA.12 The amended statute crucially announced that Washington would retroactively recognize a postmortem right of publicity for all individuals “regardless of whether the law of the domicile . . . of the individual or personality at the time of death . . . recognizes a similar or identical property right.”13 Experience then filed a new lawsuit against Hendrixlicensing.com14 to “protect and preserve the legacy of our beloved Jimi,”15 specifically by enforcing its trademarks under the Lanham Act and the Washington Consumer Protection Act.16 Hendrixlicensing.com counterclaimed, seeking a declaratory judgment that Experience did not own Hendrix’s right of publicity under the WPRA.17
Once again tasked with adjudicating the question of Jimi Hendrix’s postmortem personality rights, the Western District of Washington held that Experience could not rely on Hendrix’s right of publicity to constrain parties “from trading in images or likenesses of Jimi Hendrix.”18 The opinion conceded that the amended WPRA “contain[ed] a clear directive to apply the law of Washington,”19 which would in turn “deem all rights to the use of Jimi Hendrix’s [personality] . . . as having descended via intestate succession to Al Hendrix” and, consequently, to Experience.20 However, after underlining that Jimi Hendrix was essentially a stranger to Washington and that the WPRA’s choice-of-law directive was therefore “arbitrary and unfair,”21 the court struck down the statute’s choice-of-law provisions as unconstitutional.22 Having rendered the choice-of-law amendments to the WPRA inoperable, the court concluded that New York law applied and that Experience thus had no claim to Hendrix’s personality rights.23
The Ninth Circuit reversed and remanded on the issue of the WPRA’s constitutionality.24 Writing for the panel, Judge Ebel25 began by noting that neither the district court nor the parties disputed that the amended WPRA recognized Experience as the owner of Jimi Hendrix’s postmortem right of publicity.26 The key question, therefore, was whether the WPRA could constitutionally be applied to the controversy. While reasoning that the WPRA raised “difficult questions regarding whether another state must recognize [Washington’s] broad personality rights,”27 Judge Ebel asserted that “[u]nder the narrow, non-speculative circumstances presented by this case” — specifically the defendant’s attempts to license Hendrix-related products for sale in Washington — the statute could constitutionally be applied.28
Judge Ebel first addressed the argument that implementing the amended WPRA demanded the application of the law of a state with insufficient contact with Jimi Hendrix in violation of the Due Process and Full Faith and Credit Clauses of the Constitution.29 Repeating that only the “actual, non-speculative controversy at issue” was relevant,30 Judge Ebel found that Washington had “sufficiently significant contacts” with the potential in-state sales of Hendrix-related goods licensed by the defendant.31 Because applying the law would thus be “neither arbitrary nor fundamentally unfair,” it was constitutional.32
Judge Ebel ended his discussion of the WPRA by determining that the statute as applied did not violate the dormant commerce clause.33 Once again, the court’s logic was buttressed by its narrow view of the issue: because the “limited . . . controversy at issue [did] not affect transactions occurring wholly outside Washington,”34 he maintained that the WPRA would not “impermissibly burden interstate commerce.”35 Judge Ebel thus determined that “the WPRA can be applied constitutionally” to Experience’s attempts to enforce its intra-Washington claim to Jimi Hendrix’s right of publicity and instructed the district court to enter summary judgment in favor of Experience.36
The WPRA, as emphasized by the Experience Hendrix controversy, deviates sharply from traditional assumptions about the right of publicity specifically and property rights generally. Both the history of and contemporary justifications for personality rights stress that protecting individual control is intrinsic to the right and should be a guiding principle when courts and legislatures engage with the right. Yet by resolving central questions concerning the disposition of Jimi Hendrix’s personality rights with a law that Hendrix could not have anticipated would apply, the WPRA disrupted the predictability of law upon which individuals rely to plan into the future and control their personalities. The WPRA’s ultimately ineludible choice-of-law directive thus exposes how the statute could support a property regime of protean and insecure rights.
The right of publicity developed as an offshoot of the right of privacy,37 and has historically remained intimately connected with an individual’s right to control the use of his image. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.,38 the first case to officially recognize an independent “right in the publicity value of [an individual’s] photograph,”39 justified the right with reference to the harm that nonrecognition might have on a personality.40 The centrality of individual control to the property right remained consistent as right-of-publicity law developed over the succeeding decades,41 and, in its sole case on the topic,42 the Supreme Court explicitly identified the State’s interest in the right as defined by the individual’s interests.43 This line of reasoning continued as courts began to recognize the right of publicity beyond the personality’s death. For example, in an early case on the subject, the Eleventh Circuit upheld the postmortem right as a means of preventing unauthorized use of the deceased’s personality,44 thus maximizing an individual’s control of his image. Today, this tradition lives on among scholars who defend the right of publicity with reference to an individual’s natural or moral rights.45
While other contemporary justifications for the right of publicity implicate alternative concerns, they all further the rightsholder’s — and, by extension, the relevant personality’s46 — ability to control the personality’s image. Apart from the moral rights position, policy arguments in support of the right of publicity can generally be broken up into two distinct categories: those based on creating incentives and those based on efficiently allocating rights.47 Given that the incentive rationale justifies an individual’s exclusive control over the right as a means of encouraging members of society to engage in culturally beneficial public activities,48 its reasoning naturally advances the notion of individual control. And while efficient-allocation arguments — such as Professor Mark Grady’s claim that a right of publicity is needed to “ensure that publicity assets are not wasted by a scramble to use them up”49 — revolve largely around promoting the public interest, the endeavor to guard against the exhaustion of the right’s value also benefits the relevant personality who holds the value-protected right, thereby furthering individual control. A more recent rationale that cites the protection of consumers from unauthorized branding of products50 is no different, as the rightsholder maintains the power to dictate whether specific branding is authorized or not. Given that supporters of postmortem rights simply extend and expand the above arguments to defend posthumous protection of the right,51 furthering an individual’s ability to control his image ultimately underlies all major rationales for the right of publicity.
However, by eroding the background rules that govern personality rights, the WPRA undercuts this bedrock value. One’s ability to predict which state’s laws will apply in the future is a fundamental prerequisite for determining how to act in the present to control one’s image. For instance, Jimi Hendrix might hypothetically have selected New York as his domicile specifically to guarantee that New York law would apply to his personality rights after death; because that law does not recognize a postmortem right of publicity,52 his personality rights would have become public property.53 Indeed, implicit in a property owner’s rights is the “unrestricted right of disposition,”54 which, for intangible property, includes the right to abandon,55 or to make the property public.56 An artist might desire this outcome to relieve relatives of the burden of diligently tracking infringements,57 to save these relatives from potential fiduciary liability,58 or simply because he values contributing to the public domain. Alternatively, an individual domiciled in a state that recognizes a postmortem right of publicity extending for only a limited number of years might bequeath the right to certain trusted descendants without any instruction, knowing that the right would likely not pass beyond those descendants.59 Yet if that individual knew that an outside jurisdiction might superimpose laws recognizing a much longer duration of the right,60 he might act differently, either by selecting different inheritors or providing instructions on how to use the right. By applying nationwide and retroactively, the WPRA introduces instability into the previously predictable question of what law will govern one’s right of publicity. This instability directly undermines an individual’s critical ability to exercise control over his identity — the very ability personality rights were created to provide.61
The uncertainty caused by the WPRA is more than a simple affront to an individual’s ability to control his identity: the WPRA’s deviation from stable background rules has the potential to legitimize competing claims to intangible property in a way that inherently defies traditional notions of property. Analogizing to the longstanding situs rule in physical property illustrates this point. The situs rule is a conflict-of-laws doctrine that provides that disputes involving tangible property are to be resolved under the law of the place where the property is located.62 Though it has faced much criticism,63 the situs rule is followed nearly universally.64 This widespread adherence is no accident: apart from creating a stable and predictable regime that protects an individual’s knowledge and control of his rights,65 the rule provides a consistent way to mediate competing claims to physical property. Indeed, if different jurisdictions did not all agree to apply the law of the state in which the property is located in disputes concerning the property, the extent of one’s property rights and even the identity of the property owner might change across state lines. Because ownership of real property has historically included the right to exclude the rest of the world,66 the consistency provided by the universal adherence to the situs rule serves to safeguard traditional understandings and expectations regarding property by ensuring that a single legal rule determines ownership of all pieces of property.67
This same consistency is needed for the right of publicity and other intangible property rights. Even though owners of intangible property cannot identify a true situs, they have a similar interest in avoiding a situation in which different states apply different conflict-of-laws rules, resulting in competing and contradictory claims to their property.68 Yet in the realm of personality rights, the amended WPRA’s choice-of-law directive ignores the near-universal rule that the law of a personality’s domicile governs;69 should an individual lawfully use the likeness of a personality from a state that does not recognize a postmortem right of publicity to create a product that is later diverted into Washington, that individual forfeits his all but universally recognized right to the likeness.70 Thus, the WPRA’s departure from the right of publicity’s traditional domicile rule not only undermines the individual’s ability to control his personality rights, but also undercuts the stability of those very rights. Other legislatures and jurisdictions should be circumspect about passing or validating legislation that demands the types of conclusions reached in Experience Hendrix, and should instead endeavor to honor longstanding choice-of-law practices in disputes concerning intangible property.