Hustler v. Falwell.pdf - Mark Roesler

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if Valentino's name had not been used. This unauthorized use in a "work of fiction" which respondents knew was not an accurate portrayal of Valentino's life allegedly constituted a misappropriation [*863] of Valentino's right of publicity. n1 For this allegedly tortious conduct, appellant seeks damages and injunctive relief. n2 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 In his petition for hearing, appellant summarized his claim: "In essence, Petitioner alleges that defendants have created a 'product,' a fictionalized photoplay, into which, for their own gain, they appropriated the name, likeness, and identity of Rudolph Valentino in order to make their product commercially viable and to ensure a 'sale' of their product." n2 Specifically, appellant prayed for a permanent injunction restraining respondents from "commercially exhibiting . . . any false, untrue, fictionalized or fabricated film which purports to depict a portion of the life of Rudolph Valentino and/or which embodies the use of the name, likeness, and reputation of Rudolph Valentino," and "from using the name, likeness or reputation of Rudolph Valentino in any manner for the purposes of advertising any film, product, or services or for the purposes of solicitation of commercial advertising for any PAGE 43 25 Cal. 3d 860, *863; 603 P.2d 454, **456; 160 Cal. Rptr. 352, ***354; 5 Media L. Rep. 2208 FOCUS film, product, or services . . . ." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Respondents demurred to appellant's complaint, asserting that it failed to state facts sufficient to constitute a cause of action. The trial court sustained the demurrer with leave to amend. However, the court offered to sustain the demurrer without leave to amend and dismiss the complaint if appellant wished to challenge the court's ruling. Appellant elected to stand on the unamended complaint and his complaint was dismissed. This appeal followed. II In reviewing the sufficiency of a complaint following a trial court's sustaining of a general demurrer, the allegations in the complaint are assumed to be true. (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 275 [239 P.2d 630]; Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, 61 [121 Cal.Rptr. 429].) If the allegations so construed state any cause of action, then a trial court commits error when it sustains a demurrer and dismisses the complaint. n3 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 The description of respondents' conduct and state of mind set forth in section I, ante, was drawn from appellant's complaint and subsequent submissions in this action. While the sufficiency of the complaint must be judged on the
allegations therein, this court may consider admissions in appellant's subsequent submissions in determining the factual basis of his contentions. (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 7 [101 Cal.Rptr. 499, 51 A.L.R.3d 991]; Hospelhorn v. Newhoff (1941) 43 Cal.App.2d 678, 679-680 [111 P.2d 688]. Cf. Browne v. Superior Court (1940) 16 Cal.2d 593, 598-599 [107 P.2d 1, 131 A.L.R. 276]; Clyne v. Clyne (1964) 228 Cal.App.2d 597, 598, fn. 1 [39 Cal.Rptr. 677].) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The gravamen of appellant's complaint is that respondents used Valentino's name, likeness and personality in a fictionalized film which [*864] did not accurately portray his life. They thereby infringed on appellant's inherited interest in Valentino's right of publicity. Appellant seeks recovery of the amounts respondents were unjustly enriched by the unauthorized use of Valentino's right of publicity and damages for diminishing its value. No claim was made that respondents' fictional work defamed or invaded the privacy of either Valentino or [**457] [***355] appellant. n4 Therefore, appellant's complaint states a cause of action if two conditions are satisfied: (1) Rudolph Valentino had a right of publicity in the commercial uses of his name, likeness and personality, a right which could be transferred to his heirs, and (2) respondents' conduct constituted an impermissible infringement on that right. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 There was no allegation that appellant's name or likeness was used in respondents' film. Appellant recognizes that any injury to Valentino's PAGE 44 25 Cal. 3d 860, *864; 603 P.2d 454, **457; 160 Cal. Rptr. 352, ***355; 5 Media L. Rep. 2208 FOCUS personal rights, such as his right to privacy, would not be actionable after his death. (See, e.g., Hendrickson v. California Newspapers, Inc., supra, 48 Cal.App.3d at p. 62.) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In light of my conclusions in Lugosi v. Universal Pictures, ante, page 813 [160 Cal.Rptr. 323, 603 P.2d 425] (dis. opn.), I believe that plaintiff's complaint satisfies the first condition. In Lugosi, I examined the nature of an individual's interest in controlling commercial uses of his name and likeness. A prominent person has a substantial economic interest in the commercial use of his name and likeness. This is entitled to protection under the common law and should be inheritable by an individual's heirs and protected for 50 years after the individual's death. Valentino was a world-renowned silent screen star who expended considerable effort in developing his career. Unquestionably he enjoyed the protection afforded by the common law right of publicity. n5 Since the complaint alleges that appellant inherited Valentino's interest in his name and likeness and that the appropriation of Valentino's right of publicity occurred within 50 years of Valentino's death, the initial elements of a cause of action have been adequately alleged.
Page 1 and 2: 1ST CASE of Level 1 printed in FULL
Page 3 and 4: WHITE, J., filed an opinion concurr
Page 5 and 6: caused emotional distress that was
Page 7 and 8: motivated by hatred or ill-will his
Page 9 and 10: lawfully punish an individual for t
Page 11 and 12: is a vocal advocate for the prohibi
Page 13 and 14: Wyoming to the Central District of
Page 15 and 16: Finally, we note that New York has
Page 17 and 18: PAGE 16 867 F.2d 1188, *1195; 1989
Page 19 and 20: We also find fault with the second
Page 21 and 22: action for invasion of privacy. Oth
Page 23 and 24: they are not obscene. Cf Falwell, 1
Page 25 and 26: PAGE 23 867 F.2d 1188, *1200; 1989
Page 27 and 28: Ginger Rogers, under the Lanham Act
Page 29 and 30: . . . Fellini's film is an act of h
Page 31 and 32: non-moving party, summary judgment
Page 33 and 34: cf. Dallas Cowboys Cheerleaders, In
Page 35 and 36: The use of the associations with th
Page 37 and 38: 68 (quoting Central Hudson Gas & El
Page 39 and 40: with a matter of public interest, b
Page 41 and 42: as such, have enjoyed certain const
Page 43 and 44: plaintiff's claim because Zacchini'
Page 45: efusal to amend, the complaint was
Page 49 and 50: 386-389, 89 S.Ct. 1794]; Weaver v.
Page 51 and 52: 25 Cal. 3d 860, *867; 603 P.2d 454,
Page 53 and 54: N.Y.S.2d 218, 374 N.E.2d 129] (fict
Page 55 and 56: to "the facts." There is no pretens
Page 57 and 58: film was factual or fictional, no a
Page 59 and 60: 160 Cal. Rptr. 352, ***362; 5 Media
Page 61 and 62: JUDGES: Before POWELL, Associate Ju
Page 63 and 64: this determination, the judge is no
Page 65 and 66: F.2d 1005, 1007 (C.C.P.A. 1981). Th
Page 67 and 68: [**16] The district court unfortuna
Page 69 and 70: - - - - - - - - - - - - - - - - - -
Page 71 and 72: other factors support Anheuser-Busc
Page 73 and 74: The court begins its "different wor
Page 75 and 76: I respectfully dissent. PAGE 69 2ND
Page 77 and 78: The T-shirt portrays the three admi
Page 79 and 80: violated section 43(a) of the Lanha
Page 81 and 82: plaintiffs' favor. See Dallas Cowbo
Page 83 and 84: in this action that they have a val
Page 85 and 86: television series." Plaintiff's Mem
Page 87 and 88: concludes that the conceptual [*147
Page 89 and 90: The Court also notes that at the he
Page 91 and 92: since an injunction will prevent de
Page 93 and 94: success, portraying Superman in sev
Page 95 and 96: LEXSEE 222 U.S.P.Q. (BNA) 101 which
Page 97 and 98:
During this "promo" the viewer sees
Page 99 and 100:
The basic issues concerning the cop
Page 101 and 102:
similarities and differences in the
Page 103 and 104:
promote creativity, but it places a
Page 105 and 106:
from the Superman saga or incorpora
Page 107 and 108:
motion is renewed, a trial court ha
Page 109 and 110:
source or sponsorship has been impl
Page 111 and 112:
PRIOR HISTORY: [**1] April 5, 1991,
Page 113 and 114:
significant respects, each Coach ba
Page 115 and 116:
expediting litigation. See Celotex
Page 117 and 118:
1217, 1221 (2d Cir. 1987). The plai
Page 119 and 120:
infringement of its registered hang
Page 121 and 122:
produce the handbag styles at issue
Page 123 and 124:
(1986). [**29] It most assuredly do
Page 125 and 126:
PAGE 116 7TH CASE of Level 1 printe
Page 127 and 128:
- - - - - - - - - - - - - - - - - -
Page 129 and 130:
Cir. 1980). Nevertheless, registrat
Page 131 and 132:
. . . . shall be liable in a civil
Page 133 and 134:
and appearance, differing only by o
Page 135 and 136:
order a Dead Dog T-shirt. n11 The s
Page 137 and 138:
America, Inc., 971 F.2d 1395, 1401
Page 139 and 140:
Mass. Gen. L. ch. 110B, @ 12. To pr
Page 141 and 142:
N.E.2d 149, 153 (1979) (To be actio
Page 143 and 144:
Plaintiffs Girl Scouts of the Unite
Page 145 and 146:
The purposes of the corporation sha
Page 147 and 148:
Scouts' mark for Pee Wee Harris now
Page 149 and 150:
and, third, the parties dispute whe
Page 151 and 152:
to consider the eight factors artic
Page 153 and 154:
definition, parody requires resembl
Page 155 and 156:
& Elec. v. Public Serv. Comm'n, 447
Page 157 and 158:
- - - - - - - - - - - - - - - - -En
Page 159 and 160:
that there is little similarity bet
Page 161 and 162:
n22 Plaintiffs and Defendants have
Page 163 and 164:
Because First Amendment considerati
Page 165 and 166:
they made a "general mention of sco
Page 167 and 168:
certainly does not contribute to ov
Page 169 and 170:
* * * For the foregoing reasons, De
Page 171 and 172:
Convenience Coop. Co., 922 F.2d 429
Page 173 and 174:
the other six factors tilts towards
Page 175 and 176:
In actions for trademark infringeme
Page 177 and 178:
UNITED STATES DISTRICT COURT FOR TH
Page 179 and 180:
HARD ROCK CAFE and Design shirts, j
Page 181 and 182:
image on the garment. Pacific Graph
Page 183 and 184:
Stipulated Facts, para. 28. Transfe
Page 185 and 186:
para. 38. 39. Ms. Hurd admitted tha
Page 187 and 188:
T-shirts. As to marketing channels,
Page 189 and 190:
mere humorous caricature of plainti
Page 191 and 192:
deliberately plagiarized make-up do
Page 193 and 194:
1989 U.S. Dist. LEXIS 11678, *2; 11
Page 195 and 196:
nonadvertising purposes, 30 A.L.R.3
Page 197 and 198:
Modern status of Federal Civil Proc
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Hustler v. Falwell.pdf - Mark Roesler

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