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Legislative Alert

Update, Sept. 6, 2007

The bill passed in the California Assembly earlier this week. It had been scheduled for a Senate vote on Friday, Sept. 7.

Thanks to CA Senator Ridley-Thomas, CA SB771 has instead been referred back to the Judiciary Committee. As a practical matter, this means that it will almost certainly fail to pass this year, in spite of the efforts of celebrity management groups to push it through fast and below the radar. While the bill may well come back, at least we will probably have enough notice to be able to coordinate a comprehensive and effective response.

Thank you to all who acted in response to our call for support, especially the members in California — it worked!

Post Mortem, November 2007

The bill did not die. It was passed by both houses of the California Legislature and signed into law by Governor Schwartzenegger.

July 17, 2007 — Do you remember the really bad bill that the Creative Management Group and Marilyn Monroe LLC attempted to push through in NY last month? Well, they are at it again. This time, it is happening in California.

Worse, this time they are trying to rush it through in stealth mode. They have convinced some members of the Assembly and CA Senator Kuehl to take an existing bill dealing with stem cell research, delete all of its contents, and substitute a retroactive right of publicity bill! The effect of this substitution is to avoid going through all of the normal, preliminary steps that would have been required if the bill had been introduced as a new bill, so that it can be enacted quickly and without notice to interested parties.

If enacted, this bill would make California's right of publicity retroactive back to 1915, so that any celebrity who died a resident of California over the past almost-100 years would have a right of publicity that would pass automatically to his or her residuary beneficiaries. That means that, even if your use of a photo of a California celebrity was legal when you licensed it last year, that past usage may now suddenly become illegal, subjecting you to liability, damages, punitive damages, and attorneys' fees. It would also mean that, even if you paid licensing fees in the past for using a dead celebrity's photo, the people you should have paid may suddenly have changed retroactively, and you may now be subjected to additional licensing fees and liabilities!

The current bill, Senate Bill 771, is being rushed through the state legislature right now by Senator Sheila Kuehl. At this point, it is almost certain to have passed in the State Assembly. It is crucial that you act right away.

Please contact your state senator. Here is where you can find their contact info: http://192.234.213.69/smapsearch/framepage.asp

And here is the actual wording of the Senate bill, SB771.

Also, feel free to pass this memo on to other photographers you know who may not have gotten the word, including non-residents of California. This bill would affect anyone, anywhere, who licenses a photo of a celebrity who turns out to be a California resident when he or she dies.

Below is a sample letter that you can modify. Thanks for acting on this now, before it's too late.

Not a California resident?

You can make the same points, but reword your fax to explain how the bill would harm Californians as well as out-of-staters. One way is to note, "Many of my photography subjects have been residents of California." You could further add, "This bill affects all photographers, not just California residents. Anyone licensing a photograph of a celebrity who has died a resident of California would be affected."

Please fax a copy of the letter below on your letterhead to the five members of the CA Senate Judiciary Committee, where the bill is heading next:

Ellen Corbett, chair
- Fax: 916-327-2433
Tom Harman, vp
- Fax: 916-445-9263
Dick Ackerman
- Fax: 916-445-9754
Darrell Steinberg
- Fax: 916-323-2263
Sheila Kuehl
- Fax: 916-324-4823

Dear Senator (Please put the name of your Senator)

I am one of your constituents and a photographer who earns my living by making photographs, including photographs of personalities known to the public: athletes, movie stars, writer, designers, and politicians. And I am very worried about Senate Bill 771, authored by Senator Sheila Kuehl. In its current form, the bill would cause substantial damage to any business that is based on the sale of photographs or reproductions of famous people. The bill is extremely one-sided, is drafted in a way that will lead to chaos in the industry, is of questionable constitutionality, and is inherently unreasonable.

The language of the bill, as currently written, changes the law retroactively going back decades, and awards damages, including punitive damages, as well as attorneys' fees, against any and all uses in the past. Such a law would open the door to hundreds of lawsuits against every photographer, gallery, or publisher who has ever worked within today's law. Most of these people are not wealthy enough to defend against a suit, especially one instituted by large corporations like those pushing this legislation. Worse, because the law would change ownership of rights of publicity of deceased celebrities, it would retroactively make uses that were legal when made suddenly illegal.

In addition to damaging the interests of photographers, publishers and galleries, this bill would also be detrimental to the state's already beleaguered treasury. This legislation would burden the State with multiple lawsuits and appeals, which in fact would cost millions to the taxpayers.

The force behind this one sided legislation is Curtis Management Group (CMG), and its President, Mark Roesler, who represents the estate of Marilyn Monroe and many others. CMG recently lost a court ruling in both New York and California for committing fraud in representing the likeness of Marilyn Monroe. In both states, the judges ruled that Marilyn Monroe's will did not acknowledge or include her rights of publicity to be passed through her will to the second wife of one of the beneficiaries of Marilyn Monroe's estate. Senate Bill 771 is a gross attempt by CMG, a huge corporation, to provide a retroactive legislative back door around those court decisions.

As a working photographer, this worries me. If this bill were to pass, huge companies with vast resources, like CMG, would stop at nothing to sue photographers and content providers in California and all over the world. This broad reach of the language of this legislation must be changed. Retroactivity here is inherently unfair and unreasonable, and likely unconstitutional.

Sincerely,
(Your name and address)