‘You Know How to Whistle, Don’t You? Just Put Your Lips Together and Blow.’

If you don’t know who said that or in what motion picture, stop reading and go to the next article. California Governor Schwarzenegger has just signed a bill specifically aimed at altering the future results of fact patterns analogous to two recent court decisions relating to the licensing of publicity rights for deceased celebrities. The two cases—one in New York and the other in California—dealt with a challenge to the right to license the use of Marilyn Monroe’s name and likeness for commercial purposes. The rulings stated that because at the time of her death neither California nor New York had a law allowing publicity rights to survive the death of a celebrity, and because those rights were not specifically bequeathed by Marilyn Monroe, those rights could not be construed as part of the “rest, residue and remainder” of her estate, and consequently not be part of the rights available to her estate (or subsequent licensors like the plaintiffs in these cases).

The legislation just signed by Gov. Schwarzenegger makes retroactive to before Jan. 1, 1985, the right of a celebrity’s estate to construe publicity rights as part of a “rest, residue and remainder” as a bequest in a celebrity’s will. January 1, 1985 was the effective date of the current California law allowing publicity rights to survive the death of a celebrity. Unfortunately, New York still does not have a law allowing publicity rights to survive the death of the celebrity.