The Ninth Circuit U.S. Court of Appeals upheld a district court ruling dismissing a lawsuit brought by the Diana, Princess of Wales Memorial Fund, which accused the Franklin Mint of unlawfully using Diana’s likeness on dolls, jewelry, plates, sculptures and its advertisements for its products. The Franklin Mint first began selling products with Diana’s image in 1981, without authorization or objection from Princess Diana. After her death, her estate granted the Fund the exclusive right to authorize the use of Diana’s likeness, and the Franklin Mint never obtained authorization from the Fund, although it did grant authorization to some twenty other entities.
In its June 19, 2002 decision [pdf format], written by Judge Harry Pregerson, the Circuit Court agreed to disallow the Fund a claim for "right of post-mortem publicity" under California Civil Code § 3344.1(a)(1) — which maintains that companies must get consent from the deceased’s estate to sell products with the deceased’s likeness — finding instead that the applicable law is that of Great Britain, which does not recognize the right.
The Ninth Circuit also upheld the trial court’s dismissal of the Fund’s allegation of false endorsement, which concerns whether consumers could be confused as to whether the products received the endorsement of the deceased’s estate. "Under the law of false endorsement, customer confusion is the determinative issue," said the decision, and "there was no likelihood as to the origin of Franklin Mint’s Diana-related products." In addition, the decision found Franklin Mint entitled to a nominative fair use defense.
Why This Matters: This case applies a sophisticated analysis of both the determinative issues: the choice of law aspects of Calfornia "right of post-mortem publicity" (otherwise it may well have applied here) and the scope of a permissible fair use in this context.
This article originally appeared in ADLAW By Request, a publication of Hall Dickler Kent Goldstein & Wood LLP.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.