Lugosi v. Universal Pictures

• Decision Date: 03 December 1979
• Citation: 160 Cal.Rptr. 323,603 P.2d 425,25 Cal.3d 813
• Court: California Supreme Court
• Parties: , 603 P.2d 425, 10 A.L.R.4th 1150, 205 U.S.P.Q. [PG1090 5 Media L. Rep. 2185 Bela George LUGOSI et al., Plaintiffs and Appellants, v. UNIVERSAL PICTURES, Defendant and Appellant. L.A. 30824.

Page 323

160 Cal.Rptr. 323

25 Cal.3d 813, 603 P.2d 425, 10 A.L.R.4th 1150, 205 U.S.P.Q. [PG1090

5 Media L. Rep. 2185

Bela George LUGOSI et al., Plaintiffs and Appellants, v. UNIVERSAL PICTURES, Defendant and Appellant.

L.A. 30824.

Supreme Court of California, In Bank.

Dec. 3, 1979.

Irwin O. Spiegel, Beverly Hills, for plaintiffs and appellants.

Grossman & Shames and Harvey M. Grossman, Los Angeles, as amici curiae on behalf of plaintiffs and appellants.

Robert L. Wilson, Los Angeles, for defendant and appellant.

Rosenfeld, Meyer & Susman, H. Mitchell Gould and Jeffrey L. Nagin, Beverly Hills, as amici curiae on behalf of defendant and appellant.

BY THE COURT:

We granted a hearing in this case in order to consider the important issues raised. After an independent study of these issues, we have concluded that the thoughtful opinion of Presiding Justice Roth for the Court of Appeal, Second Appellate District, in this case correctly treats the issues, and accordingly adopt it as our own. That opinion, with appropriate deletions and additions, ^* is as follows:

In September 1930, Bela Lugosi and Universal Pictures Company, Inc. (Universal) ¹ concluded an agreement for the production of the film Dracula in which Lugosi contracted to and did play the title role. Paragraph 4 of the agreement contained a grant of rights set forth in the footnote. ² (Plaintiffs) Hope Linninger Lugosi and Bela George Lugosi, widow and surviving son, respectively, of Bela Lugosi, filed a complaint against Universal on February 3, 1966, alleging that they were the heirs of Bela Lugosi (Lugosi) who died in 1956, and that Universal had, commencing in 1960, appropriated and continued to appropriate property which they had inherited from Lugosi and which was not embraced in paragraph 4 of the agreement with Universal. (Plaintiffs) assert that from 1960 until the present time, Universal entered into many licensing agreements which authorized the licensees to use the Count Dracula character. The licensing agreements executed by Universal list the particular movie and the date of the movie in which Lugosi appeared.

The issue as framed by the trial judge is: "(Plaintiffs) seek to recover the profits made by (Universal) in its licensing of the use of the Count Dracula character to commercial firms and to enjoin (Universal) from making any additional grants, without (their) consent . . . . The action, therefore, raises the question of whether Bela Lugosi had granted to (Universal) in his contracts with (Universal) merchandising rights in his movie portrayal of Count Dracula, the nature of such rights, and whether any such rights, if retained by Bela Lugosi, descended to the (plaintiffs) . . . ."

The trial court found in pertinent part that "the essence of the thing licensed" by Universal to each of its licensees was the "uniquely individual likeness and appearance of Bela Lugosi in the role of Count Dracula." The finding was based upon uncontradicted evidence that it was Lugosi's likeness that was used in the merchandising of Count Dracula notwithstanding the fact that other actors (Christopher Lee, Lon Chaney and John Carradine) appeared in the Dracula role in other Universal films.

The trial court concluded that: Lugosi during his lifetime had a protectable property or proprietary right in his facial characteristics and the individual manner of his likeness and appearance as Count Dracula; that said property or proprietary right was of such character and substance that it did not terminate with Lugosi's death but descended to his heirs; and that (they) acquired all right, title and interest in and to said property under the will of Lugosi.

(Plaintiffs) recovered a judgment for damages and an injunction. Universal appeals. ³

Bram Stoker's 1897 novel Dracula has always been in the public domain in the United States. ⁴ Universal's film Dracula, however, was copyrighted after the studio had purchased the motion picture rights from Florence Stoker, Stoker's heir, and from Hamilton Deane and John Balderston, the authors of the 1927 stage play Dracula. (Lugosi had played Count Dracula in the 1927 Deane-Balderston Broadway play.) The trial court found, notwithstanding Universal's copyright in the film, that the character of Count Dracula as described in Stoker's novel is in the public domain in the United States.

Before discussing the applicable law, it should be noted:

There is no allegation in the complaint, no evidence in the record, and no finding of the court that Lugosi in his lifetime alone or with others used his name and/or likeness as Dracula or otherwise in connection with any business, product or service so as to impress a secondary meaning on such business, product or service.

However, Lugosi could have created during his lifetime through the commercial exploitation of his name, face and/or likeness in connection with the operation of any kind of business or the sale of any kind of product or service a general acceptance and good will for such business, product or service among the public, the effect of which would have been to impress such business, product or service with a secondary meaning, protectable under the law of unfair competition. (Johnston v. 20th Century-Fox Film Corp. (1947)82 Cal.App.2d 796, 810, 187 P.2d 474.) The tie-up of one's name, face and/or likeness with a business, product or service creates a tangible and saleable product in much the same way as property may be created by one who organizes under his name a business to build and/or sell houses according to a fixed plan or who writes a book, paints a picture or creates an invention. ⁵

The trial court found, and the parties have extensively briefed and argued, that the interest in question is one of "property" as that term is defined in Civil Code section 654. We agree, however, with Dean Prosser who considers a dispute over this question "pointless." (Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 406.) "Once protected by the law, (the right of a person to the use of his name and likeness) . . . is a right of value upon which plaintiff can capitalize by selling licenses." (Italics added; Prosser, Law of Torts (4th ed. 1971) p. 807.)

In brief, Lugosi in his lifetime had a right to create in his name and/or likeness ". . . a right of value," which could have been transmuted into things of value or Lugosi could, if he elected not to exercise such right, protect it from invasion by others by a suit for injunction and/or damages. However, insofar as the record shows, Lugosi had no occasion in his lifetime to sue or restrain anyone because of a purported invasion of his right to commercially exploit his name and likeness.

Such ". . . a right of value" to create a business, product or service of value is embraced in the law of privacy and is protectable during one's lifetime but it does not survive the death of Lugosi. "The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, 'to be let alone.' Without any attempt to exact definition, these four torts may be described as follows: (P) 1. Intrusion upon the plaintiff's seclusion or solitude or into his private affairs. (P) 2. Public disclosure of embarrassing private facts about the plaintiff. (P) 3. Publicity which places the plaintiff in a false light in the public eye. (P) 4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness." (Italics added, Prosser, Privacy, supra, 48 Cal.L.Rev. 383, 389.) ⁶ Assuming arguendo that Lugosi, in his lifetime, based upon publicity he received and/or because of the nature of his talent in exploiting his name and likeness in association with the Dracula character, had established a business under the name of Lugosi Horror Pictures and sold licenses to have "Lugosi as Dracula" ⁷ imprinted on shirts, and in so doing built a large public acceptance and/or good will for such business, product or service, there is little doubt that Lugosi would have created during his lifetime a business or a property wholly apart from the rights he had granted to Universal to exploit his name and likeness in the characterization of the lead role of Count Dracula in the picture. Dracula.

However, even on the above assumption, whether Lugosi's heirs would have succeeded to such property depends entirely on how it was managed before Lugosi died. Lugosi may have sold the property and spent the consideration before he died, or sold it for installment payments and/or royalties due after his death, in which latter event such payments and/or royalties would, of course, be a part of his estate.

"There has . . . been a good deal of consistency in the rules that have been applied to the four disparate torts under the common name. As to any of the four, it is agreed that the plaintiff's right is a personal one, which does not extend to members of his family, unless, as is obviously possible, their own privacy is invaded along with his. The right is not assignable, and while the cause of action may or may not survive after his death, according to the survival rules of the particular state, There is no common law right of action for a publication concerning one who is already dead." (Italics added, fns. omitted, Prosser, Law of Torts, supra, pp. 814-815.)

(Although, as we discuss hereafter, the right to exploit one's name or likeness may be assignable,) ( ) a number of decisions support the italicized conclusion.

In Maritote v. Desilu Productions, Inc. (7th Cir. 1965) 345 F.2d 418 (cert. den. 382 U.S. 883, 86 S.Ct. 176, 15 L.Ed.2d 124), the administratrix of the estate of Al Capone brought an action for unjust enrichment arising out of the defendant's alleged appropriation of the name, likeness and personality of Al...