Intellectual Property Law

Court to Consider Constitutionality of Personality Rights Statute

By Michael Atkins

Tomorrow Western District Judge Thomas Zilly will consider the constitutionality of RCW 63.60, Washington’s Personality Rights Act.

This is in the Experience Hendrix, LLC v. HendrixLicensing.com, Ltd. case, in which the Jimi Hendrix Estate’s licensing company sued the seller of Jimi Hendrix-oriented artwork (discussed here and here).

Among other things, plaintiff claims the defendant violated Washington’s right of publicity statute, as amended in 2008, which states the right of publicity recognized in this state “does not expire upon the death of the individual or personality, regardless of whether the law of the domicile, residence, or citizenship of the individual or personality at the time of death or otherwise recognizes a similar or identical property right.” (The amendment is discussed here and here.) 

The defendant responded in part by filing a counterclaim challenging the statute’s constitutionality. It then moved for partial summary judgment on its counterclaim.

Interestingly, the court certified the issue of whether the statute is constitutional to the Washington State Attorney General pursuant to Federal Rule 5.1(b) — a rule I’ve never before considered. The Attorney General, however, declined to intervene in the case.

On Dec. 29, the court ordered the parties to file additional briefing “concerning whether the WPRA would be constitutional if interpreted as a ‘statutory directive’ to apply Washington law in determining if Jimi Hendrix’s right of publicity survived his death and passed to his heir.”

This will be the first time a court has passed on the constitutionality of Washington’s statute — a statute that could strongly influence how right of publicity claims are prosecuted.

Full post as published by Seattle Trademark Lawyer on January 13, 2011 (boomark / email).