This is a little story about conflicts of law, trusts and estates, and the right of publicity. No, seriously, why are you all running away? Come back! It’ll be fun, I swear.

Conflicts of law is the field of law that figures out which body of law to use when a case has a connection to more than one place, something that happens pretty much any time someone in one state sues someone in another. Trusts and estates is the field of law that figures out what to do with the stuff that belonged to dead people when they were alive. And the right of publicity is the the right, recognized in some places and not in others, that no one can make money off of your name or face without your permission. When these three collide, it’s not fun. Or perhaps it’s more fun than a barrel of monkeys. It depends on your perspective.

Our story starts in California. California courts use a procedure called “governmental interest analysis” to handle conflict of laws problems. Where two states’ laws differ on a point at issue in the case before it, a California court asks what respective policies those laws represent. If one of those policies turns out not to be applicable to the case, then that state’s law should be disregarded and the other state’s law can be applied.

To get a feel for what this “analysis” means in practice, consider the story of Hurtado v. Superior Court, 11 Cal. 3d 574 (1974). (Yes, that does say “Superior Court.” Through a quirk of civil procedure, certain appeals from decisions of trial courts are formally suits against the court, asking a higher court to intervene and set aside the trial court’s decision.) Manuel Cid Hurtado lived in California. His cousin Antonio Hurtado lived in Mexico. While Antonio was visiting Manuel, they got into a car crash, in which Antonio died. Antonio’s widow back in Mexico, Maria de Jesus Flores de Hurtado sued Manuel for wrongful death in a California court. (There were some other parties to the case, whom I’ve dropped for sake of simplicity). Now, at the time, Mexican law limited damages in a wrongful death suit to approximately $2,000. California had no such limit. One important question, therefore, was which rule the California court should apply.

Turn governmental interest analysis loose on a problem such this one, and it will go something like this. California has two interests in not capping damages for wrongful death. First, it wants to make sure that victims’ families are compensated for their suffering and not left destitute. Second, it wants to encourage safe roads (and safe everything, in fact) by making sure that those responsible for wrongful deaths are forced to pay. Mexico, by capping wrongful death damages, has indicated a policy of protecting defendants in wrongful death actions by avoiding “excessive financial burdens” on them. This way of looking at things decides the case, because Mexico, the court confidently asserts, has no interest in protecting California citizens from excessive financial burdens. And while it is true that California has no interest in compensating Mexican victims, California does still have an interest in having safe roads. Thus, California is interested in this case, while Mexico is not, so Californian law controls. No cap.

Now that you see how it’s done, why don’t you have a go at it? Our case this time around will be Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001). Here, the plaintiffs were a bunch of Hawaiian surfers who were famous back in the 1960s. Abercrombie & Fitch used their photographs in a surfing-themed section of its Spring 1999 Quarterly. Without permission. They sued in a California court, hoping to take advantage of a California law providing for a generous right of publicity. Abercrombie, in defense, said that Hawaiian law should apply instead. Hawaii has no right of publicity statute and no recorded cases on a right of publicity. Do you see how this one ought to come out?

Under the Hurtado rule, it’s easy. George Downing & co. win: they’re like Maria. It’s true that their home state hasn’t been as generous as California in providing for them, but that’s no matter: the injury took place in California, which has a perfectly good interest in making sure that no harm comes to, ah, er, California, um, rights of publicity. Hmmm. Let’s try again. As the court said, “[O]ne of the primary purposes of creating a cause of action in tort is to deter misconduct within its borders by persons present within its borders. By distributing its catalog within California, Abercrombie was operating within its borders.” Okay, that works.

You’re doing great. Just one more case. Cairns v. Franklin Mint, 292 F.3d 1139 (9th Cir. 2002) (if you actually look this case up, you should read the prior history, especially the first district court decision, 24 F. Supp. 1013 (C.D. Cal. 1998)). During Princess Di’s lifetime, many companies in the U.S., including the much-beloved and much-mocked Franklin Mint, made collectible dolls, plates, and jewelry with her name and picture on them. As befits royalty, she “neither authorized nor objected to any of these products.” After her death, her estate authorized about twenty companies to make such products, with the proceeds going, by way of her memorial fund, to her favorite charities. The Franklin Mint was not among this elite set of manufacturers (not by appointment to her late no-longer-royal highness?), but went ahead with its line of “unauthorized Diana-related products.” The memorial fund sued—guess where—in California. Great Britain has no right of publicity, full stop. Care to predict how it came out?

British law applies, of course.

What? You didn’t see that one coming? Let me trace the reasoning for you. The California statute on the posthumous right of publicity, Cal. Civ. Code s. 3344.1 (the “Astaire Celebrity Image Protection Act”), explicitly says that posthumous rights of publicity are “property rights, freely transferable.” The court then bounces over to another piece of California law, Civil Code section 946:

If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile.

So, they reason, if the posthumous right of publicity is personal property, and we should use the law of the place where its owner lives, and its owner lives in Great Britain, and Great Britain doesn’t recognize rights of publicity, that means that this particular right of publicity doesn’t exist in the first place. And if it doesn’t exist, there’s no way that it was infringed. Case closed.

Now, remember how I said that California law makes posthumous rights of publicity “property rights?” Strangely enough, the corresponding statute that deals with living people’s rights of publicity, Cal. Civ. Code s. 3344, doesn’t have a corresponding provision. Which would seem to indicate that Lady Di, while she was alive, had a right of publicity that California courts would recognize. And that’s more or less exactly what Downing, that glory of governmental interest analysis, tells us. I’m not quite sure how to describe the result in Cairns (it has a bit of a First Restatement flavor, for conflict of law nerds), but governmental interest analysis it ain’t.

Now for some questions.

• If you had been Diana’s estate planner, what, if anything, could you have done to preserve her California right of publicity after her death?
• Does the contrast between Cairns and Downing imply that the right of publicity in a living person’s likeness is not a property right? If so, what practical consequences does this classification have, other than choice of law? If not, are Downing and Cairns distinguishable on some other basis?
• Do you think the California legislature anticipated this contrast? Now that it has been made apparent, do you think they agree with it? Do you think they care?
• What is a right of publicity? Is it tangible? Does it exist in a Platonic sense? In what sense can it be said to have a location? Should its legal treatment turn on its ontological status?
• Do you think either or both of these cases would or should have come out differently in a California state court, as opposed to a federal court applying California law?
• Does your gut sense of justice and injustice, if any, provide any useful guidance in dealing with choice of law problems?
• With whom do you sympathize more, George Downing, or the Diana Princess of Wales Memorial Fund? Who do you think had better access to good lawyers?
• Do you think that either Abercrombie or the Franklin Mint realized that it might have a right of publicity problem before the nastygram came in the mail? Should they have?
• Do you agree that California has an interest in preventing the distribution of Abercrombie & Fitch catalogs containing a photo of George Downing without his consent? In preventing the sale of unlicensed Princess Diana Portrait Baby Dolls?
• Do you agree that Mexico had no interest in capping Maria Hurtado’s damages for her husband’s death in a car crash caused by his cousin? That Hawaii had no interest in preventing George Downing from suing over the publication of a photograph of himself taken 34 years ago?
• Why do you think that Diana never sued the Franklin Mint during her lifetime, when California law would presumably have recognized her claim? Why do you think that the Fund decided to sue after her death, when we know that California law did not recognize its claim? Do you think that the choice of law problem had anything to do with these decisions by Diana and the Fund?
• Do you feel confident that choice of law rules are predictable and/or sensible?