Reynolds v. Rob (In re Estate of Reynolds)

235 Ariz. 80

327 P.3d 213

685 Ariz. Adv. Rep. 37

In the Matter of the ESTATE OF Lois Catherine REYNOLDS, Deceased.Sylvia Reynolds, as Personal Representative of the Estate of Lois Catherine Reynolds, Petitioner/Appellant,

v.Robin Reynolds, Respondent/Appellee.

No. 1 CA–CV 13–0274.

Court of Appeals of Arizona, Division 1.

April 24, 2014.

Fennemore Craig, PC, By Timothy J. Berg, Ray K. Harris, Jacob J. Cranston, Phoenix, for Petitioner/Appellant.

Jaburg & Wilk, PC, By Lauren L. Garner, Maria Crimi Speth, Phoenix, for Respondent/Appellee.

Chief Judge DIANE M. JOHNSEN authored the opinion of the Court, in which Acting Presiding Judge PATRICIA K. NORRIS and Judge MAURICE PORTLEY joined.

OPINION

JOHNSEN, Judge.

¶ 1 Robin Reynolds wrote two online commentaries about her mother Lois, one describing her own reaction to her elderly mother's diminished quality of life, and the other, a fond Mother's Day remembrance after her mother had died. Robin's sister, Sylvia, personal representative of their mother's estate, objected to Robin's writings and listed a claim against Robin for violation of Lois's right of publicity on her inventory of the assets of the estate. After Robin protested, the superior court disallowed the claim, ruling the estate had “no Right of Publicity.”

¶ 2 We hold that a right of publicity exists under Arizona law and that it may be enforced by one's estate after death. We affirm the superior court's order, however, because we conclude that, as a matter of law, Robin's commentaries do not give rise to a claim for a violation of Lois's right of publicity.

FACTS AND PROCEDURAL HISTORY

¶ 3 Robin's article for an online magazine in August 2010 was titled “ I Want to Die Like a Dog: Poignant Insights on Aging Gracefully.” In it, Robin described her aging mother's daily challenges with independent living. Robin wrote that although her mother claimed she did not want to burden her children, she had made no care plans for herself and as a result, called on Robin for help with all manner of problems. Robin observed that “[r]egardless of the magnitude of [her mother's] mishaps, I am expected to respond promptly with little regard for how stressful these episodes” were for Robin and her family. Robin concluded that she had resolved not to leave these “agonizing decisions” to her own child. She closed by saying she wished to age gracefully and “die like [her] dog,” “not expecting anything, but happy and grateful for every kindness” she received.

¶ 4 Lois passed away in January 2011. In her will, she named as heirs her children—Robin, Sylvia and their brother, Doug. In April 2011, Doug wrote to Robin saying he and Sylvia were “shocked, hurt and deeply angry” to discover Robin's online account about their mother. He demanded Robin remove the commentary and promise to refrain from writing anything else about their family “either in non-fiction or ‘fictional form.’ ” Shortly thereafter, through counsel and as personal representative, Sylvia asked Robin to sign an agreement to refrain from making any “[p]ublication actually or reasonably perceived to be about or relating to Lois (including without limitation Lois's name, likeness and description ...).” Robin refused to sign the agreement, and on Mother's Day a few weeks later, posted a blog tribute to Lois that included a photograph of herself with her mother.

¶ 5 When Sylvia issued an inventory of the estate, it included an entry labeled “Estate claim against Robin Reynolds [ ] for Right of Publicity in the name of Lois Catherine Reynolds.” Robin filed a petition to compel closure of the estate, arguing it could not assert any purported right of publicity on behalf of Lois. After briefing, the superior court ruled the estate had no claim against Robin.

¶ 6 The estate timely appealed. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (“A.R.S.”) section 12–2101(B) (2014).¹

DISCUSSION

A. The Right of Publicity: General Principles.

¶ 7 Violation of the right of publicity, also termed “appropriation,” originally was one of the four varieties of invasion of privacy. SeeRestatement (Second) of Torts §§ 652A, 652C (1977); William L. Prosser, Privacy, 48 Cal. L.Rev. 383, 389 (1960).² Arizona long has recognized a common-law right of privacy, see Reed v. Real Detective Publ'g Co., 63 Ariz. 294, 305, 162 P.2d 133, 138 (1945), allowing claims based on each of the three other forms of invasion of privacy. See id. (publication of private facts); Hart v. Seven Resorts Inc., 190 Ariz. 272, 279, 947 P.2d 846, 853 (App.1997) (intrusion upon seclusion); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 342, 783 P.2d 781, 788 (1989) (false light).

¶ 8 The “right of publicity” at issue here is defined by the Restatement (Third) of Unfair Competition (“Restatement Third”) § 46 (1995) as the right to the “commercial value of a person's identity.” Under this provision, “[o]ne who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade is subject to liability” for resulting damages. Id. As the Restatement Third explains:

Like the right of privacy, the right of publicity protects an individual's interest in personal dignity and autonomy. With its emphasis on commercial interests, the right of publicity also secures for plaintiffs the commercial value of their fame and prevents the unjust enrichment of others seeking to appropriate that value for themselves. The right to prohibit unauthorized commercial exploitation of one's identity allows a person to prevent harmful or excessive commercial use that may dilute the value of the identity. Although proof of deception or confusion is not an element of liability under this Section, the right of publicity indirectly affords protection against false suggestions of endorsement or sponsorship.

Id. cmt. c.

¶ 9 One of the earliest cases acknowledging the right of publicity was Zacchini v. Scripps–Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). The plaintiff was an entertainer with “a ‘human cannonball’ act in which he is shot from a cannon into a net some 200 feet away.” Id. at 563, 97 S.Ct. 2849. He sued a television station that recorded his 15–second act at a fair and broadcast it in its entirety without his consent. Id. at 564, 97 S.Ct. 2849. Acknowledging the plaintiff's right under state law to the “professional property” of his act, the Supreme Court held the television station had no First Amendment right to appropriate the act by broadcasting it without his consent. Id. at 575–77, 97 S.Ct. 2849. Key to the Court's decision was that the television station effectively had stolen the commercial value of the plaintiff's act:

If under this standard respondent had merely reported that petitioner was performing at the fair and described or commented on his act, with or without showing his picture on television, we would have a very different case. But petitioner is not contending that his appearance at the fair and his performance could not be reported by the press as newsworthy items. His complaint is that respondent filmed his entire act and displayed that film on television for the public to see and enjoy.

Id. at 569, 97 S.Ct. 2849.

¶ 10 Rooted in recognition of the commercial value of an individual's name or likeness, the right of publicity is in the nature of a property right. Restatement Third § 46 cmt. g. Accordingly, the tort of appropriation affords redress of commercial injuries, by contrast to personal injuries of the sort remedied by a claim for, e.g., invasion of privacy by intrusion or publication of private facts. Id. cmt. a; see Haelan Labs. Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir.1953) (distinguishing personal right of privacy, which might give rise to a claim for personal injuries for hurt feelings caused by publication of one's picture, from that person's “right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture”); Uhlaender v. Henricksen, 316 F.Supp. 1277, 1280 (D.Minn.1970) (by contrast to the three other traditional forms of invasion of privacy, a claim for appropriation generally considered to involve a pecuniary loss, an interference with property).

¶ 11 The right of publicity “is most often invoked to protect the value associated with the identity of a celebrity.” Restatement Third § 46 cmt. d. Indeed, appropriation claims typically arise out of the unauthorized use of a well-known person's name or likeness in connection with the advertising of goods or services. See, e.g., Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir.1983); Palmer v. Schonhorn Enters., Inc., 96 N.J.Super. 72, 232 A.2d 458 (N.J.Super.Ct. Ch. Div.1967); State ex rel. Elvis Presley Int'l Mem'l Found. v. Crowell, 733 S.W.2d 89, 97 (Tenn.App.1987). But “the identity of even an unknown person may possess commercial value.” Restatement Third § 46, cmt. d (“evaluation of the relative fame of the plaintiff is more properly relevant to the determination of appropriate relief”). See Cont'l Optical Co. v. Reed, 119 Ind.App. 643, 86 N.E.2d 306, 310 (1949) (claim brought by Army optician); Canessa v. J.I. Kislak, Inc., 97 N.J.Super. 327, 235 A.2d 62, 75 (N.J.Super. Law Div.1967) (family searching for home to rent).

¶ 12 In the absence of Arizona law to the contrary, we generally follow the Restatement. Espinoza v. Schulenburg, 212 Ariz. 215, 217, ¶ 9, 129 P.3d 937, 939 (2006). We see no reason to depart from the Restatement Third in this matter, and therefore hold that an individual has a right of publicity that protects his or her name and/or likeness from appropriation for commercial or trade purposes.

B. Violation of a Decedent's Right of Publicity.

¶ 13 Citing A.R.S. § 14–3110 (2014), Robin argues a claim for violation of an individual's...