Guglielmi v. Spelling-Goldberg Productions

• Citation: 603 P.2d 454,160 Cal.Rptr. 352,25 Cal.3d 860
• Decision Date: 05 December 1979
• Docket Number: SPELLING-GOLDBERG
• Court: United States State Supreme Court (California)
• Parties: , 603 P.2d 454, 205 U.S.P.Q. 1116, 5 Media L. Rep. 2208 Jean GUGLIELMI, Plaintiff and Appellant, v.PRODUCTIONS et al., Defendants and Respondents. L.A. 30872.

Page 352

160 Cal.Rptr. 352

25 Cal.3d 860, 603 P.2d 454, 205 U.S.P.Q. 1116,

5 Media L. Rep. 2208

Jean GUGLIELMI, Plaintiff and Appellant, v. SPELLING-GOLDBERG PRODUCTIONS et al., Defendants and Respondents.

L.A. 30872.

Supreme Court of California, In Bank.

Dec. 5, 1979.

Rudin & Perlstein and Vincent H. Chieffo, Beverly Hills, for plaintiff and appellant.

Lillick, McHose & Charles, Kenneth E. Kulzick, Lawrence W. Dam and Kathleen Hallberg, Los Angeles, for defendants and respondents.

Selvin & Weiner and Paul P. Selvin, Los Angeles, as amici curiae on behalf of defendants and respondents.

BY THE COURT:

Appellant allegedly is the nephew of the actor Rudolph Valentino, who died in 1926. According to the complaint herein, in 1975, respondents exhibited on television a "fictionalized version" of Valentino's life, depicting the actor's name, likeness and personality without obtaining the prior consent of either Valentino or appellant. In the present action, appellant seeks damages and injunctive relief on the theory that respondents have misappropriated Valentino's "right of publicity," and that appellant as Valentino's legal heir is the present owner of that right. Respondents' demurrer to the complaint was sustained and, upon appellant's refusal to amend, the complaint was ordered dismissed. This appeal followed.

In Lugosi v. Universal Pictures, 160 Cal. 323, --- Cal.Rptr. ----, --- P.2d ----, we hold that the right of publicity protects against the unauthorized use of one's name, likeness or personality, but that the right is not descendible and expires upon the death of the person so protected. Lugosi controls the disposition of the present case and makes it unnecessary to discuss any further issues raised by the parties.

The judgment is affirmed.

BIRD, Chief Justice, concurring.

This court must decide whether the use of a deceased celebrity's name and likeness in a fictional film exhibited on television constitutes an actionable infringement of that person's right of publicity. It is clear that appellant's action cannot be maintained. Therefore, the trial court properly dismissed his complaint.

I

In his complaint, appellant alleges that Rudolpho Guglielmi, also known as Rudolph Valentino, was his paternal uncle. Valentino was a world-renowned silent motion picture actor who created substantial commercial value in his identity through his motion picture performances. Appellant contends that Valentino had a protectible proprietary interest in the commercial uses of his name, likeness and personality. Appellant alleges that he inherited this right of publicity, under Valentino's will following Valentino's death in 1926.

On November 23, 1975, respondents exhibited on the television network owned by American Broadcasting Companies, Inc., a film entitled Legend of Valentino: A Romantic Fiction. Appellant alleges that "(s)aid film purports to represent a portion of the life of Rudolph Valentino and employs the name, likeness and personality of Rudolph Valentino." However, appellant asserts that while the principal character is identified as Valentino, the film is "a work of fiction about the life and loves of an Italian actor who became Hollywood's first romantic screen star and who died at the height of his fame." Hence, the film is a "fictionalized version of Rudolph Valentino's life." Appellant alleges that respondents knew that the film did not truthfully portray Valentino's life, and that the film was made without Valentino's or appellant's consent. Appellant contends that respondents also used Valentino's name, likeness and personality in advertising the film "to solicit and to sell commercial sponsorship exhibited in conjunction with the exhibition of said film and to solicit viewers for the exhibition of said film."

Appellant argues that by incorporating Valentino's identity in the film and related advertisements, respondents "were able to derive greater income from their film by attracting more viewers and sponsors than they would have . . ." if Valentino's name had not been used. This unauthorized use in a "work of fiction" which respondents knew was not an accurate portrayal of Valentino's life allegedly constituted a misappropriation of Valentino's right of publicity. ¹ For this allegedly tortious conduct, appellant seeks damages and injunctive relief. ²

Respondents demurred to appellant's complaint, asserting that it failed to state facts sufficient to constitute a cause of action. The trial court sustained the demurrer with leave to amend. However, the court offered to sustain the demurrer without leave to amend and dismiss the complaint if appellant wished to challenge the court's ruling. Appellant elected to stand on the unamended complaint and his complaint was dismissed. This appeal followed.

II

In reviewing the sufficiency of a complaint following a trial court's sustaining of a general demurrer, the allegations in the complaint are assumed to be true. (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 275, 239 P.2d 630; Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, 61, 121 Cal.Rptr. 429.) If the allegations so construed state any cause of action, then a trial court commits error when it sustains a demurrer and dismisses the complaint. ³

The gravamen of appellant's complaint is that respondents used Valentino's name, likeness and personality in a fictionalized film which did not accurately portray his life. They thereby infringed on appellant's inherited interest in Valentino's right of publicity. Appellant seeks recovery of the amounts respondents were unjustly enriched by the unauthorized use of Valentino's right of publicity and damages for diminishing its value. No claim was made that respondents' fictional work defamed or invaded the privacy of either Valentino or appellant. ⁴ Therefore, appellant's complaint states a cause of action if two conditions are satisfied: (1) Rudolph Valentino had a right of publicity in the commercial uses of his name, likeness and personality, a right which could be transferred to his heirs, and (2) respondents' conduct constituted an impermissible infringement on that right.

In light of my conclusions in Lugosi v. Universal Pictures, 160 Cal. 323, --- Cal.Rptr. ----, --- P.2d ---- (dis. opn.), I believe that plaintiff's complaint satisfies the first condition. In Lugosi, I examined the nature of an individual's interest in controlling commercial uses of his name and likeness. A prominent person has a substantial economic interest in the commercial use of his name and likeness. This is entitled to protection under the common law and should be inheritable by an individual's heirs and protected for 50 years after the individual's death. Valentino was a world-renowned silent screen star who expended considerable effort in developing his career. Unquestionably he enjoyed the protection afforded by the common law right of publicity. ⁵ Since the complaint alleges that appellant inherited Valentino's interest in his name and likeness and that the appropriation of Valentino's right of publicity occurred within 50 years of Valentino's death, the initial elements of a cause of action have been adequately alleged.

It must therefore be determined whether respondents' conduct constituted an infringement of Valentino's right of publicity. In resolving that question, the context and nature of the use is of pre-eminent concern. Valentino's name and likeness were allegedly used in a work of fiction broadcast on television. Appellant characterized respondents' film as "a work of fiction about the life and loves of an Italian actor who became Hollywood's first romantic screen star and who died at the height of his fame." Valentino was identified as that character. ⁶

Film is a "significant medium for the communication of ideas." (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 501, 72 S.Ct. 777, 780, 96 L.Ed. 1098.) Whether exhibited in theaters or on television, a film is a medium which is protected by the constitutional guarantees of free expression. (U.S.Const., 1st and 14th Amends.; Cal. Const., art. I, § 2; Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. at pp. 501-502, 72 S.Ct. 777; Red Lion Broadcasting Co. v. FCC (1969) 395 U.S. 367, 386-390, 89 S.Ct. 1794, 23 L.Ed.2d 371; Weaver v. Jordan (1966) 64 Cal.2d 235, 242, 49 Cal.Rptr. 537, 411 P.2d 289.) A film is presumptively protected (People v. Superior Court (Freeman) (1975) 14 Cal.3d 82, 88, 120 Cal.Rptr. 697, 534 P.2d 393, and will forfeit that protection only if it falls within "narrowly limited classes" of cases (Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031).

Appellant contends that the Valentino film is not entitled to the cloak of constitutional protection because respondents incorporated Valentino's name and likeness in: (1) a work of fiction, (2) for financial gain, (3) knowing that such film falsely portrayed Valentino's life. The critical issue is whether the presence of these factors, individually or collectively, sufficiently outweighs any protection this expression would otherwise enjoy under the United States and California Constitutions.

In emphasizing the fictional nature of the film, appellant's argument reveals a fundamental misconception of the nature of the constitutional guarantees of free expression. "The constitutional right of free expression . . . is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests." (Cohen v. California (1971) 403 U.S. 15, 24, 91 S.Ct. 1780, 1787-88, 29 L.Ed.2d 284.)

The First Amendment and article I,...