The Rights of Old Movie Stars

by John Aquino on 06/07/12

 

I was watching a 1952 movie called Dreamboat on Turner Classic Movies the other day and marveled at how the film anticipated but mispredicted actual litigation and raised issues that are still with us in that they involve protection for moving and visual images on the Internet.

In the movie, Clifton Webb plays Thorton Sayre, a college professor and former silent film actor, who finds himself a sensation when his silent films are shown on television with sound effects added. His co-star, Gloria Marlowe, played by Ginger Rogers, adores her revived fame, but Sayre sues to have the films taken off television, claiming they are an invasion of his privacy.

The attorney for the defense, played by Ray Collins, who would four years later play police Lt. Tragg on Perry Mason, argues, quite rightly, that Sayre allowed himself to be filmed and the movies were being shown on television for the same purpose for which they were made—entertainment.

Sayre has a television brought into the court and by flipping channels shows that television is full of commercials and other mindless pursuits. He also demonstrates that title cards have been introduced so that Miss Marlowe promotes the perfume of the television show’s sponsor. Sayre wins his case.

The movie is a not too subtle attack on television, which was then keeping viewers at home rather than at the movies. The defense attorney is right that invasion of privacy is not an appropriate cause of action. By showing that Miss Marlowe is being made to shill perfume, Sayre is really giving a case for a violation of the right of publicity—which had not been well articulated in 1952. The problem is, since she is the person being made to promote perfume, it is her right of publicity that is being violated, not his. And she is more than willing to promote anything to have her career revived.

Unfortunately, when television resurrected old movies to fill time, few of the stars of those movies were found to have any legal rights in the films or their images.   

William Boyd, who played Hopalong Cassidy in a series of movies from 1935 to 1947, anticipated the rise of television and bought the television rights to the films in 1949, which he then licensed to television to his great financial reward, not only from the actual film to television transaction but from the merchandising of Hopalong Cassidy hats, guns, and rocking horses.

But most of the stars were unable to do that and, like Boyd, had been contract players. Somebody else owned the copyright to the movies and made all the money from the tv licensing transaction. To be sure, actors like Sayre and Marlowe, Boris Karloff, Charles Farrell, and others benefited from the additional exposure and got more work. But they didn’t benefit from either the licensing of the films to television or from the merchandising rights.

We are all mortal. And the issue of right of publicity stemming from movie roles blossomed into litigations once performers of the golden age of Hollywood began to die.

The son of the silent film star Lon Chaney, Lon Chaney Jr., was very vocal in 1961 when a syndicated television show called Fractured Flickers employed gifted voice actors to sub funny lines for silent films. In The Hunchback of Notre Dame, in which Chaney Senior played the hunchbacked bell-ringer Quasimodo, the voice actors described him as “Dinky Dunstan, Boy Cheerleader.”  Chaney Jr. threatened suit, but he apparently never got that far. He found he had no copyright in the movie and no rights in his father’s image.

Other families did sue. After the deaths of Laurel and Hardy, their widows sued Hal Roach Studios to prevent the licensing of the images of their husbands for an animated television show about the due. The court in Price v. Hal Roach Studios, F. Supp. 836 (S.D. New York 1975), found that their husbands’ right in the commercial use of their voices and likenesses was a property right that was inheritable under the laws of New York.

Earlier, the Los Angeles Supreme Court had established the same principle in Lugosi v. Universal Studios, 172 U.S.P.Q. 1972) in a lawsuit by Bela Lugosi’s family to gain a share of the vast revenues from merchandising the studio had earned from use of Lugosi’s image as Count Dracula on lunch boxes and Halloween costumes. But the California Supreme Court reversed, Lugosi v. Universal Pictures, 24 Cal. 3d 813 (1979), concluding that the right was not inheritable.

One offshoot of all of this is that, when the litigation began, Bela Lugosi Jr. was in law school. He went onto to become a lawyer and built up a practice representing the heirs of movie personalities such as the Three Stooges, Boris Karloff, and Lon Chaney. He also, along with others, lobbied for a change in California state law, which was enacted as California Civil Code Section 990 in 1988 and which makes a person who uses the name, likeness, or voice of a deceased personality without permission to merchandise products liable for damages. Exceptions are given for plays, books, films, or radio.

Ironically, even though Laurel and Hardy’s widows won in New York court and Lugosi’s family lost in California court, by statute, the right of publicity is extended after death in California and in New York the right is not inheritable.

For the living, it was and is a matter who owns the copyright in the films, of the right of publicity statute in the particular state where the person depicted is domiciled, and, most importantly, the contracts for the performer’s work in the particular film, which specify the permitted uses.

Copyright 2012 by John T. Aquino. This article does not constitute a legal opinion and is intended solely for educational purposes