Montgomery v. Montgomery, 1999-SC-1111-DG.

• Decision Date: 21 November 2001
• Docket Number: No. 1999-SC-1111-DG.,1999-SC-1111-DG.
• Citation: 60 S.W.3d 524
• Parties: Barbara MONTGOMERY, as Personal Representative of the Estate of Her Deceased Husband, Harold Edward Montgomery Appellant v. John Michael MONTGOMERY, Atlantic Records Corporation, and Maureen Ryan Appellees.
• Court: United States State Supreme Court — District of Kentucky

60 S.W.3d 524

Barbara MONTGOMERY, as Personal Representative of the Estate of Her Deceased Husband, Harold Edward Montgomery Appellant v. John Michael MONTGOMERY, Atlantic Records Corporation, and Maureen Ryan Appellees.

No. 1999-SC-1111-DG.

Supreme Court of Kentucky.

November 21, 2001.

William M. Thompson, David A. Tapp, 117 W. Mt. Vernon Street, Somerset, Counsel for Appellant.

Brent L. Caldwell, Jon A. Woodall, McBrayer, McGinnis, Leslie & Kirkland, PLLC, Lexington, Counsel for Appellees.

JOHNSTONE, Justice.

Barbara Montgomery, as personal representative of the estate of Harold Edward Montgomery, brought suit against John Michael Montgomery, Harold's son. In the suit, Barbara claimed that John Michael had violated Harold's common-law and statutory right of publicity by using Harold's voice and likeness in a music video. The trial court granted summary judgment in John Michael's favor. The Court of Appeals affirmed. We conclude that the right of publicity does not apply in this case and, therefore, affirm.

FACTS

Harold E. Montgomery was a musician in and around Garrard County in Central Kentucky. He wrote several songs that were recorded in small recording studios. Harold performed alone and with other musicians over a period of years at festivals in his local area. While he rarely appeared outside the Commonwealth of Kentucky, he did twice venture to Nashville, Tennessee, where he recorded a song entitled, "Let Me Be Young Again," and appeared on a local television show.

John Michael Montgomery, Harold's son by Harold's first wife, is a nationally-known country music star. With Harold's encouragement, John Michael took an early interest in country music. The two formed an extraordinary bond.

Harold married Barbara Rogers in 1988. About the same time, John Michael began to rise to the apex of country music, both in song writing and performance. While his fame and success eclipsed his father's, apparently his efforts at achieving it did not. By all accounts, Harold passionately pursued his music career, but never made it to the top. It was through his son that Harold realized his dreams of stardom.

Harold was diagnosed with cancer in 1993 and died in 1994. Barbara was the sole beneficiary of his estate under his will and was named as executrix thereof. She settled the estate informally and expeditiously.

In February 1997, John Michael released his fourth album, which contains the song entitled, "I Miss You a Little." The song is a tribute to Harold. Additionally, a music video of the song was released shortly afterwards. The video lies at the center of the controversy in this case. As found by the trial court, the music video is four minutes and twenty-seven seconds (4:27) long and Harold Montgomery's "likeness" appears in approximately thirty (30) seconds of the video as follows: (1) Harold is heard singing, "Let Me Be Young Again"; (2) Harold's gravestone appears; (3) a forty-five rpm record of "Let Me Be Young Again" bearing Harold's name appears; (4) a picture of Harold and John Michael performing together appears; (5) an article headed "John Michael is living out his father's dream" appears; (6) a picture of Harold performing appears; (7) Harold's gravestone appears a second time; (8) a second picture of John Michael and Harold performing together appears; and (9) the closing dedication states, "This song is written in memory of my father, Harold E. Montgomery." John Michael did not get permission from his father's estate to reproduce Harold's images or vocalizations contained in the music video.

The music video first aired nationally on or about March 3, 1997. Thereafter, Barbara, as executrix of Harold Montgomery's estate, filed suit claiming among other allegations that the use of Harold's likeness in the video violated his estate's common-law and statutory right of publicity.

The trial court granted summary judgment in the defendants' favor on October 5, 1998. In so doing, the trial court found in pertinent part that the common-law right of publicity is not inheritable and that Harold was not a "public figure" within the meaning of KRS 391.170. Specifically, the trial court concluded that a "public figure" was a person who had attained "national celebrity status" within his lifetime.

The Court of Appeals affirmed the trial court's finding that the common-law right of publicity is not inheritable. But instead of examining whether there is a common-law right of publicity that is distinct from the common-law right of privacy established by this Court in McCall v. Courier-Journal & Louisville Times,¹ the Court of Appeals assumed that the right of publicity was subsumed in the appropriation prong of the right of privacy, which provides: "The right of privacy is invaded by ... appropriation of the other's name or likeness...."² The Court of Appeals held that the common-law right of privacy is not inheritable.

The Court of Appeals rejected the trial court's definition of a "public figure" as too narrow. Still, the Court of Appeals affirmed the trial court's ruling. It formulated its own definition and held that Harold's name and likeness did not have "significant commercial value."

On appeal to this Court, Barbara has abandoned her common-law claims. Her arguments focus solely on allegations of error in interpreting KRS 391.170 by the courts below. Thus, Barbara's common-law claims are not at issue in this case. Therefore, we do not address or decide in this opinion: (1) whether there exists in the Commonwealth a common-law right of publicity that is distinct from the common-law right of privacy; (2) whether the common-law right of publicity (if it exists) is inheritable; or (3) whether any or all of the rights embraced by the right of privacy are inheritable.

STATUTORY RIGHT OF PUBLICITY

The only issue before us concerns the proper construction of KRS 391.170, which creates a posthumous right of publicity and provides:

(1) The General Assembly recognizes that a person has property rights in his name and likeness which are entitled to protection from commercial exploitation. The General Assembly further recognizes that although the traditional right of privacy terminates upon death of the person asserting it, the right of publicity, which is a right of protection from appropriation of some element of an individual's personality for commercial exploitation, does not terminate upon death.

(2) The name or likeness of a person who is a public figure shall not be used for commercial profit for a period of fifty (50) years from the date of his death without the written consent of the executor or administrator of his estate.

The trial court's ruling turned on its interpretation of the term "public figure," as: "one who has vigorously sought the attention of a national audience and has achieved such a level of success that he is considered a national celebrity." The Court of Appeals disagreed with the trial court on this issue and implied that the trial court's definition was too narrow. Rather, the Court of Appeals concluded that a "public figure" was a person whose name and likeness had a "significant commercial value" and affirmed the trial court on grounds that Harold's name and likeness did not reach this threshold. We need not determine the correct definition of "public figure," because, as a matter of law, neither Harold's voice nor image was appropriated for "commercial profit" within the meaning of statute in the music video of John Michael's song "I Miss You a Little."

While the right of publicity at issue in this case is statutory, we believe that many of the principles of the common-law right of publicity can be used in reaching the proper construction of KRS 391.170.³

COMMON LAW RIGHT OF PUBLICITY

The common-law right of publicity evolved from the appropriation prong of the right of privacy.⁴ But "it is a distinct cause of action intended to vindicate different interests."⁵ As originally postulated, the right of privacy protects one's right "to be let alone."⁶ Whereas the right of publicity protects the right to control the commercial value of one's identity.⁷ The appropriation prong of the invasion of privacy originally sought to compensate for the emotional distress accompanied by the unauthorized use of one's likeness and identity.⁸ But as the tort has evolved, it is clearly the commercial interests in one's identity that the appropriation prong of tort serves to protect the most.⁹ Further, as is stated in KRS 391.170, the interest protected is considered a property right.¹⁰ Thus, as the torts have evolved, the main differences between the appropriation prong of the right of privacy and the right of publicity concern questions of transferability and survivability.¹¹ Because the interests protected are nearly identical, our discussion below — which concerns the reach of the protection of one's commercial interests provided by both the common-law rights of publicity and privacy — refers only to the right of publicity.

WHETHER BARBARA'S CLAIM IS ACTIONABLE

Both the common-law right of publicity and the statutory right created by KRS 391.170 can be read broadly to protect a wide variety of uses of a person's (or public figure's) identity. But the right of publicity is fundamentally constrained by federal and state constitutional protection of the freedom of expression.¹² Thus, the "use of a person's identity primarily for the purpose of communicating information or expressing ideas is not generally actionable as a violation of the person's right of publicity."¹³ In order to determine whether a person's right of publicity has been appropriated, "the context and nature of the use is of preeminent concern."¹⁴

In this case, Harold's name, image, and voice were used in a music video. "Music, as a form of expression and communication, is protected under the First Amendment."¹⁵ Likewise, "[e]ntertainment ... is protected; motion pictures, programs broadcast by radio and...