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WILL COMPETING YSL BIOPICS START A RIGHT OF PUBLICITY WAR?

By Aaron Riedel [April 1st, 2013] 

YSL

As WWD reported last month, two Yves Saint Laurent biopics are slated for production: “Saint Laurent”, directed by Bertrand Bonello, and “Yves Saint Laurent”. However, only “Yves Saint Laurent” has the backing of Pierre Bergé, YSL’s former partner.  Bergé, who inherited and subsequently sold much of YSL’s estate, surely has a unique recollection and perspective of YSL through personal experience, knowledge of YSL’s personal history and access to YSL’s personal records.

This raises an interesting question: who owns a deceased celebrity’s publicity rights?

In the U.S., state law governs wills and the right to publicity, which includes the right to use and profit off of a celebrity’s likeness and name.  Currently, 13 U.S. states have legislation to protect dead celebrities’ right to publicity.

Indiana has the most extensive legislation granting dead celebrities the right to pass their right of publicity to their heirs. Indiana’s “James Dean Law”, passed the state legislature in 1994 and extends protection for one hundred years after the celebrity’s death.  Additionally, Indiana allows the transfer of celebrities’ publicity rights regardless of the state in which they were born. CMG Worldwide, an entertainment group that manages celebrity’s rights and estates, currently owns the publicity rights to such figures as Marlon Brando and Jackie Robinson.

California passed its “dead celebrities” bill in 1985, officially granting the right of publicity as a separate property right that can be granted before death by contract trust or after death in a will. The Astaire Celebrity Image Protection Act, as the bill has been called, also allows such rights to be passed to one’s heirs through intestacy law in the absence of a will granting the rights.  The Act grants owners of a celebrity’s publicity rights protection for seventy years after the year of death. Confusion as to which celebrities the law applied to arose in early 2007; California and New York federal courts separately ruled that the law applied only to celebrities who died after 1985.

The sale of celebrity publicity rights can be extremely lucrative. As the Telegraph reported in 2008, the Elvis Presley estate sold an 85% stake in its ownership for $100 million to CKX Inc.

However, some states, such as New York, prevent their residents from passing on their rights of publicity – the right ends at his or her death. Proposed legislation to make publicity rights descendible, however, has become increasingly popular. Last year, Bill Cosby lobbied the Massachusetts legislature to pass legislation that would protect a celebrity’s publicity rights.  As of today, Massachusetts has not enacted the proposed bill.

In contrast to the United States, France, a civil law jurisdiction, classifies the right of publicity as a personality right under Article 9 of the French Civil Code. During the life of a celebrity, the publicity right is treated as part of the right of privacy and cannot be transferred. The farthest that publicity rights extend after death is up until burial or cremation; pictures of a dead celebrity on his or her deathbed or in the morgue are banned and are considered an invasion of privacy.  Additionally, families of a deceased celebrity can bring suit against a party for disclosure of personal information, such as medical records, that injures that celebrity’s image or reputation.

Thus, while the Bergé endorsed “Yves Saint Laurent” film may contain information, conversations or other details that the “Saint Laurent” film may not, it is unlikely that Bergé will succeed in any suit commenced to protect YSL’s right of publicity.  PPR, the luxury group that owns Yves Saint Laurent’s brand as well as numerous trademarks including marks “YSL” and “Yves Saint Laurent” has not filed any actions in connection with the biopic, allowing YSL to rest in peace.

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