296 S.E.2d 697 (Ga. 1982)
In 1980 James E. Bolen developed the concept of marketing plastic busts of Dr. Martin Luther King, Jr. through B & S Enterprises, later incorporated as American Heritage Products, Inc., with manufacturing by B & S Sales owned by his father James F. Bolen.1
Although Bolen sought the endorsement and participation of the Martin Luther King, Jr. Center for Social Change, the Center refused the offer.2 Bolen proceeded by hiring an artist to prepare a mold and an agent to handle promotion.3
Bolen placed two half-page advertisements in the November and December 1980 issues of Ebony magazine offering the busts as an exclusive memorial with a contribution from each order going to the King Center.4 He also published a brochure inserted in 80,000 copies of newspapers across the country that included photographs of Dr. King and excerpts from his copyrighted speeches.5
Out of the $29.95 purchase price, Bolen set aside three percent or ninety cents as a contribution to the Center, though the trust fund agreement for those earnings was never executed.6 By the time of the preliminary injunction hearing, defendants had sold approximately 200 busts with 23 more on order.7
On November 21, 1980, and December 19, 1980, the plaintiffs demanded that the Bolens cease and desist from further advertisements and sales of the busts.8 The plaintiffs are the Martin Luther King, Jr. Center for Social Change, Coretta Scott King as administratrix of Dr. King’s estate, and Motown Record Corporation as assignee of rights to several of Dr. King’s copyrighted speeches.9
On December 31, 1980, the plaintiffs filed a complaint in the United States District Court for the Northern District of Georgia seeking to enjoin use of the Center’s name, copyright infringement, and manufacture and sale of the busts.10 The district court denied the defendants’ motion to dismiss.11 The motion to dismiss was denied and the motion for a preliminary injunction was granted in part and denied in part.12
The plaintiffs appealed the partial denial of the preliminary injunction to the United States Court of Appeals for the Eleventh Circuit.13 The Eleventh Circuit certified four questions to the Georgia Supreme Court regarding the right of publicity under Georgia law.14
Whether the right of publicity is recognized in Georgia as a right distinct from the right of privacy?15
The appropriation of another’s name and likeness, whether such likeness be a photograph or sculpture, without consent and for the financial gain of the appropriator is a tort in Georgia, whether the person whose name and likeness is used is a private citizen, entertainer, or as here a public figure who is not a public official.16 In Pavesich the right was denominated the right of privacy; in Cabaniss it was the right of publicity.17 While private citizens have the right of privacy, public figures have a similar right of publicity, and the measure of damages to a public figure for violation of his or her right of publicity is the value of the appropriation to the user.18
Yes. Georgia first recognized the right of privacy in Pavesich v. New England Life Ins. Co. when an artist’s picture was used without consent in an advertisement.19 The Court of Appeals in Cabaniss v. Hipsley then identified the appropriation prong as the right of publicity when an exotic dancer’s misnamed photograph was used without consent to advertise the Playboy Club.20
The court extended the same protection to public figures by holding that Dr. King, a public figure prominent in religion and civil rights, is entitled to no less protection than an exotic dancer or movie actress.21 The defendants’ manufacture and sale of plastic busts of Dr. King after the Center refused endorsement constitutes unauthorized appropriation for financial gain.22
The right of publicity is recognized in Georgia as a right distinct from the right of privacy.23
Related opinions on this issue
Justice Weltner concurred specially. He believed the complaint states a claim upon which relief can be granted under the ancient remedy of money had and received because the defendants’ conduct was unconscionable.24 He disagreed most decidedly with the substantive portion of the majority opinion because it generates more unsettling questions than it resolves.25
He argued that proclaiming a new right of publicity creates an open-ended and ill-defined force that jeopardizes free speech.26 The dividing line should be the community’s judgment of what is unconscionable rather than the presence or absence of financial gain, and the majority’s approach would eliminate scholarly research and public comment.27
Whether the right of publicity survives the death of its owner and is inheritable and devisable?28
The right of publicity is assignable during the life of the celebrity.29 Recognition of the right of publicity rewards and thereby encourages effort and creativity.30 If the right of publicity dies with the celebrity, the economic value of the right of publicity during life would be diminished because the celebrity’s untimely death would seriously impair, if not destroy, the value of the right of continued commercial use.31 Those who would profit from the fame of a celebrity after his or her death for their own benefit and without authorization have failed to establish their claim that they should be the beneficiaries of the celebrity’s death.32 The trend since the early common law has been to recognize survivability.33
Yes. The right of publicity is assignable during life, as established in Haelan Laboratories, and therefore survives death.34 The court applied this rule to Dr. King by noting that the economic value of his name and likeness would be diminished if the right ended at death.35 This would allow defendants such as American Heritage Products to receive a windfall from the sale of approximately 200 busts.36
The court rejected the contrary holdings in Lugosi and Memphis Development Foundation. It emphasized that the defendants here engaged in a profit-making endeavor rather than a nonprofit memorial project.37
The right of publicity survives the death of its owner and is inheritable and devisable.38
Whether the owner must have commercially exploited the right before it can survive his death?39
Exploitation is understood to mean commercial use by the celebrity other than the activity which made him or her famous.40 The requirement that the right of publicity be exploited during life arises from dicta in Hicks v. Casablanca Records that was unnecessary to the decision and has been eroded even in the Southern District of New York.41 Following such a rule would single out for protection after death only those entertainers and athletes who exploit their personae during life.42 It would deny protection to those who enjoy public acclamation but did not exploit themselves during life, putting a premium on exploitation.43
No. The court applied the rule to the established facts by observing that Dr. King, a Baptist minister and civil rights leader, could have exploited his name and likeness during his lifetime but chose not to because commercial exploitation would have impaired his ministry.44 The defendants’ sale of busts after the Center refused participation does not become permissible merely because Dr. King elected not to commercialize his image.45 The court held that a person who avoids exploitation during life is entitled to have his image protected against exploitation after death just as much if not more than a person who exploited his image during life.46 Therefore the right survived Dr. King’s death without prior commercial exploitation.47
The owner need not have commercially exploited the right before it can survive his death.48
Whether guidelines must be formulated for defining commercial exploitation and evidentiary prerequisites to showing it?49
Because question 3 is answered in the negative, question 4 need not be answered.50
No. The court determined that because the right of publicity survives death without any requirement of prior commercial exploitation, it was unnecessary to formulate guidelines or evidentiary prerequisites for defining such exploitation.51 The established facts concerning the defendants’ advertisements and sales of 200 busts therefore did not require further analysis under any exploitation test.
The fourth certified question is not answered.52