Heirs’ Rights in Celebrity Ads Are Challenged

Taking issue with other experts, a First Amendment lawyer predicted Tuesday that a new California law that bars the unauthorized commercial use of a deceased celebrity’s picture, voice or likeness is unconstitutional because it conflicts with federal copyright laws.

Los Angeles lawyer Rex S. Heinke, speaking at a seminar held by the American Advertising Federation at the Beverly Hilton, said the law, which became effective Jan. 1, “clearly conflicted” with the copyright laws, which confer certain ownership rights to photographers who take pictures of celebrities. To date, however, no court challenges to the new law have been made.

“I can understand Elvis Presley’s estate being upset at people selling (what they represent to be) his sweat, but the fact of the matter . . . is that the law is plainly unconstitutional,” Heinke said.

Heated Debate

Heinke’s comments come as the advertising industry and celebrities are locked in a heated debate over whether heirs of celebrities have any exclusive right to commercially exploit their famous relatives, much as companies are entitled to control use of their trademarks.

Besides California, six other states--Tennessee, Florida, Nebraska, Oklahoma, Utah and Virginia--regulate the use of a deceased celebrity’s likeness. California’s law gives heirs the right to control the commercial use of a celebrity’s likeness, signature and voice.

Other legal experts dispute Heinke’s interpretation. A spokesman for the American Civil Liberties Union, which initially opposed the California law, claiming that it was too broad, said it now sees no First Amendment problems with the legislation as it passed last August.

The controversy was first touched off in California on Dec. 3, 1979, when the state Supreme Court ruled that heirs of Bela Lugosi held no exclusive rights to commercially exploit the actor’s portrayal of Count Dracula.

The court said “the right to exploit name and likeness is personal to the artist and must be exercised, if at all, by him during his lifetime.”

Madison Avenue, of course, has long used living celebrities to keep viewers from tuning out their commercials. According to the Screen Actors Guild, its members rely on advertising jobs for about 48% of their income. And some entertainers, such as Bill Cosby, have created a small industry for themselves pitching products for such companies as Del Monte, Texas Instruments Inc., Coca-Cola Co. and Ford Motor Co.

Celebrities Complain

But the Lugosi decision brought complaints from celebrities and their relatives.

Led by Priscilla Presley, who had complained that a group of entrepreneurs were selling vials purportedly containing her late husband’s sweat, and by actress Elizabeth Taylor, they persuaded state Sen. William Campbell (R-Hacienda Heights) to introduce a measure to prohibit such practices.