There probably aren’t many probate opinions that depend on the Restatement (Third) of Unfair Competition.
Daughter made comments on the web whining about having to care for her dying mother. Mother then died. Sister, purporting to find out about the comments only after Mother’s dearth, told the complaining daughter to stop making public comments about Mother. Daughter then put a tribute to Mother on her blog. Sister, as Mother’s P.R., then filed an estate claim against Daughter for violation of the “right of publicity.” The point of this opinion is to establish a right of publicity, though it doesn’t apply to what Daughter did.
The court starts its analysis thus: “Violation of the right of publicity, also termed “appropriation,” originally was one of the four varieties of invasion of privacy. See Restatement (Second) of Torts §§ 652A, 652C (1977); William L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960).” Now, these are two cites for essentially the same thing and so we wonder whether the court didn’t know that or knew it and cited both anyway to make its opinion look stronger. Prosser was the Senior Reporter for the Restatement (Second) and incorporated in it his theories of privacy law (though several volumes of his Restatement were not published until years after his death, such is the glacially slow pace at which the ALI operates). He had earlier stated those theories in the Privacy article. (That article invented the “four varieties,” by the way. Did the court know that, either, or did it think it was plumbing the depths of common-law history?)
In any event, the court then jumps to the Restatement (Third) of Unfair Competition, which speaks of a “right of publicity” creating a claim against “[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.” (In other words, the “right of publicity” is the right of no publicity, an absurdity for which we cannot blame CA1. The point of Prosser’s Privacy article was in fact to try to bring order to the field, which is in part why it is now seen as dated and restrictive by enlightened minds.)
The court explains how the right of publicity protects performers and celebrities from having their identity ripped off. So how does that apply to Mother? Well, “even the identity of an unknown person can have commercial value,” according to the Restatement. So, how does that apply to Mother? Because “we see no need to depart from the Restatement.” In other words, if the Restatement says it then there’s no point in reading too closely or trying to figure out what it means. Instead of explaining that the key is not notoriety but trade value and how the two can differ the court simply applies the tort to everyone.
Daughter then argued that Mother’s “right of publicity” hadn’t survived her because the survival statute (14-3110) excludes “invasion of the right of privacy.” But it doesn’t specifically say “right of publicity” and that is “logical,” the court tells us, because the claims that do not survive are “deeply personal” ones; the right of publicity, on the other hand, despite what the court told us earlier about privacy, “is more akin to a property right, the breach of which is measured by resulting pecuniary loss, than a personal right whose violation results in emotional injury.” In other words, the statute omits right of publicity not because it never existed until now but because the legislature made a logical analysis of it and logically decided that it should not survive. (In fairness, and we do try to be fair once in a while even though its normally far less interesting, the court is presumably trying to say – or at least should be trying to say, though on balance we’re not sure that the court is sure what it should be trying to say – that this is what the legislature would have done had it had the opportunity to consider the tort.) One wonders, though, what will come of today’s pronouncement that libel and slander, for example – also non-surviving claims in the statute – do not result in pecuniary loss.
But the court can’t stop and continues on this issue by saying “But even when appropriation, or violation of the right of publicity, was treated as a variety of invasion of privacy, the Restatement (Second) of Torts expressly allowed such a claim to survive the death of the holder.” Is the opinion saying that right of publicity would survive even were it a right of privacy even though our statute says right of privacy doesn’t survive? That’s the implication; we almost said “the obvious implication” but perhaps it wasn’t so to somebody. We thought these folks swore their oaths to the laws and Constitution of Arizona, not to the Restatement.
In the next paragraphs, though, right of publicity becomes a property right again so as to hold that it can be asserted by the estate.
Finally, however, the court rules against Sister because Daughter’s articles, though arguably done for a commercial purpose, were not “for purposes of trade.” That’s what right of publicity applies to according to the Restatement of Unfair Competition. The court apparently intends that you read the Restatement to find out what that means since it doesn’t much comment on it itself. Daughter’s comments were “on the order of an unauthorized biography,” which is “plainly” not right-of-publicity stuff. (We used to complain about opinions’ unreasonably long statements of fact. We haven’t had to make that complaint lately – and yes, we’re willing to take credit for the change, thank you. But in this case the facts deserved a bit more explanation; why any of this was even arguably commercial activity is especially vague and had to be supplemented by a footnote late in the opinion.)
