David Weisman vs Michael Post
Case No: 1469303
Hearing Date: Fri May 25, 2018 9:30

Nature of Proceedings: Motion for Summary Judgment/Adjudication

TENTATIVE RULING: Plaintiff’s motion for summary judgment or, in the alternative, summary adjudication is denied.

BACKGROUND:

This case involves a dispute over ownership of the publicity rights to deceased fashion model and actress Edie Sedgwick, who died on November 16, 1971 in Santa Barbara, California. Sedgwick was just 28 years old when she died. On December 18, 1970, Sedgwick and plaintiff David Weisman, a film producer and director, entered into a contract in which Sedgwick granted to Weisman “all rights, worldwide, in perpetuity, in media and in all means whether presently known or unknown, to the results and proceeds of [Sedgwick’s] services, and grants [Weisman] the right to utilize [Sedgwick’s] name, likeness and biography in connection with advertising or publicizing the motion picture ‘CIAO! MANHATTAN.’” In July 1971, just three months before she died, Sedgwick married defendant Michael Post, also of Santa Barbara. Today, Weisman and Post both claim ownership of Sedgwick’s publicity rights.

In 2006, Post started licensing Sedgwick’s name and likeness, including certain photographs of the model/actress. Weisman contends that Post’s actions are in violation of Weisman’s publicity rights to Sedgwick. On April 22, 2015, Weisman filed his first amended complaint against Post for (1) damages for violation of rights of publicity, (2) declaratory relief, and (3) injunctive relief. Post answered the FAC with a general denial on June 1, 2015.

Weisman now moves for summary adjudication on his second cause of action for declaratory relief. Specifically, Weisman seeks an order declaring that the publicity rights to use Sedgwick’s name, likeness, and biography in connection with advertising or publicizing the film “CIAO! MANHATTAN” are wholly owned by Weisman and that Post has no publicity rights to Sedgwick and no rights in the name, likeness, image, or identity of Sedgwick as successor-in-interest under Civil Code Section 3344.1. Alternatively, Weisman seeks an order adjudicating that Post has (1) a duty to Weisman not to claim any publicity rights to Sedgwick adverse to Weisman and (2) a duty to Weisman not to claim any publicity rights adverse to Weisman as successor-in-interest to Sedgwick under Civil Code Section 3344.1. Finally, Weisman seeks a final judgment in the action. There is no filed opposition to the motion.

ANALYSIS:

Request for Judicial Notice

Weisman has requested that the court take judicial notice of: (1) Judgment entered by the U.S. District Court, Central District of California, David Weisman v. Michael Post, Case No. CV-11-6033-GW(JCx), filed September 24, 2008; (2) Court Order (in Chambers) re dismissal of supplemental jurisdiction claims without prejudice, U.S. District Court, Central District of California, David Weisman v. Michael Post, Case No. CV-11-6033-GW(JCx), filed September 8, 2014; (3) Probate Order Assigning Estate in re Estate of Edith Sedgwick Post, Santa Barbara Superior Court Case No. 94863, filed March 20, 1972; (4) Certified copy of Death Certificate of Edith Sedgwick Post, dated November 16, 1971; (5) Conformed copy of Petition for Order to Set Aside Estate not Exceeding $5,000.00 in re Estate of Edith Sedgwick Post, Santa Barbara Superior Court Case No. 94863, filed January 14, 1972; (6) Inventory and Appraisement in re Estate of Edith Sedgwick Post, Santa Barbara Superior Court Case No. 94863, filed January 20, 1972; (7) State of California Inheritance Tax Declaration re property of Edith Sedgwick Post, dated January 14, 1972; and (8) State of California Marital Property Declaration re property of Edith Sedgwick Post, dated January 27, 1972.

Items 1, 2, 3, 5, and 6 are court records of a prior federal case involving these same parties and the probate proceeding concerning the Estate of Edith Sedgwick Post for which judicial notice may and will be taken. Evid. Code §452, subd. (d). Item 4 is a recorded document for which judicial notice may and will be taken as the document “[is] not reasonably subject to dispute and [is] capable of immediate and accurate determination.” Evid. Code §452, subd. (h). Items 7 and 8 are State of California tax forms purportedly completed by Michael Post in January 1972. Neither of these items is subject to judicial notice under Evidence Code Section 452 and judicial notice of the documents will be denied.

Motion for Summary Judgment/Adjudication

Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or there is no defense to the action. Code Civ. Proc. §437c, subd. (a). Summary judgment is properly granted if all the papers submitted in support of the motion show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c, subd. (c). A party may also move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, or one or more claims for damages if it is contended that the cause of action has no merit, there is no merit to the affirmative defense, or there is no merit to the claim for damages. Code Civ. Proc. §437c, subd. (f)(1). A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, or a claim for damages. Code Civ. Proc. §437c, subd. (f)(1).

The publicity rights to a “deceased personality’s” name, voice, signature, photograph, or likeness are “property rights” that are freely transferrable, in whole or in part, by contract or by means of a testamentary instrument of the deceased personality effective on the date of his or her death. Civ. Code §3344.1, subd. (b). Where the deceased personality entered into a contract during his or her lifetime by which the deceased personality assigned the rights, in whole or in part, to use his or her name, voice, signature, photograph, or likeness, the contract shall remain valid and enforceable notwithstanding any testamentary instrument. Ibid. In the absence of a contract or testamentary instrument transferring the publicity rights to a deceased personality’s name, voice, signature, photograph, or likeness, all such rights shall belong to the following person or persons:

● The surviving spouse of the deceased personality.

● If there is a surviving spouse and surviving children of the deceased personality, one-half of the publicity rights belongs to the surviving spouse and one-half belongs to the surviving children.

● If there is no surviving spouse and no surviving children, the entire interest in the publicity rights of the deceased personality belongs to the surviving parent or parents of the deceased personality.

Civ. Code §3344.1, subd. (d).

The term “deceased personality” is defined to mean:

“[A]ny natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death, or because of his or her death, whether or not during the lifetime of that natural person the person used his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods, or services.”

Civ. Code §3344.1, subd. (h).

The unauthorized use of the publicity rights of a deceased personality’s name, voice, signature, photograph, or likeness shall entitle the owner of the publicity rights to damages. Civil Code Section 3344.1, subdivision (a)(1), provides:

“Any person who uses a deceased personality’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified [herein] shall be liable for any damages sustained by the person or persons injured as a result thereof. . . . Punitive damages may also be awarded to the injured party or parties. The prevailing party or parties in any action under this section shall also be entitled to attorney’s fees and costs.”

In the instant case, Weisman moves for summary adjudication on his declaratory relief cause of action on the ground that Sedgwick assigned to him broad rights of publicity to her name, likeness, and biography “worldwide” and “in perpetuity.” Weisman is a film producer and director and prior to 1972, he co-wrote, co-directed, and co-produced an original film entitled “CIAO! MANHATTAN.” (Weisman Dec., ¶2.) The film is a semi-biographical account of the life and experiences of Edie Sedgwick, an American film actress and fashion model best known for her interactions with artist Andy Warhol in New York City in the mid-1960’s. (Weisman Dec., ¶¶ 2, 11.) Plaintiff claims that his entitlement to Sedgwick’s publicity rights stems from his December 18, 1970 contract with Sedgwick in connection with her work on the film “CIOA! MANHATTAN.” That contract provides, in relevant part:

“1. PRODUCER [Weisman] agrees to employ ARTIST [Sedgwick], and ARTIST agrees to render services exclusively to PRODUCER, for the period of ‘approximately three weeks,’ commencing on or about the 18th day of December, 1970. Said serves to be rendered at such locations and studios as PRODUCER may designate and to consist of the portrayal before the motion picture camera of such characters or roles as the PRODUCER may select for the motion picture production tentatively entitled ‘CIAO! MANHATTAN.’

“2. ARTIST agrees that she will, during the term of this contract, hereinafter referred to as TERM, or any extensions thereof, devote her services exclusively to PRODUCER, and not engage in any other occupation.

“3. ARTIST hereby grants to PRODUCER all rights, worldwide, in perpetuity, in media and in all means whether presently known or unknown, to the results and proceeds of ARTIST’S services, and grants PRODUCER the right to utilize ARTIST’S name, likeness and biography in connection with advertising or publicizing the motion picture ‘CIAO! MANHATTAN.’”

(Weisman Dec., ¶3, Ex. 9.)

The court disagrees that Weisman’s contract with Sedgwick granted to him exclusive ownership of Sedgwick’s name, likeness, and biography worldwide and in perpetuity. Weisman’s rights stemming from the December 1970 contract are limited to Sedgwick’s “services” (i.e., work product) provided in connection with her work on “CIAO! MANHATTAN.” As so limited, those rights extend “worldwide” and “in perpetuity” to all images of Sedgwick created during the filming of “CIAO! MANHATTAN,” regardless of the media employed. (Ibid.) This was essentially the finding of the U.S. District Court in Weisman’s 2014 copyright infringement case against Post, David Weisman v. Michael Post, U.S. District Court, Central District of California, Case No. CV-11-6033-GW(JCx), though that decision was based on U.S. copyright law rather than contract law. (Weisman Dec., ¶7, Ex. 1.) In October 1983, Weisman registered “CIAO! MANHATTAN” with the U.S. Copyright Office and the District Court found that Weisman’s copyright registration granted to him the ownership rights to all images of Sedgwick resulting from the making of the film. Ibid. The District Court, however, declined to address whether Weisman had established a basis for ownership of Sedgwick’s other images and likenesses, unrelated to the film, under either California contract law or Civil Code Section 3341. Ibid.

In addition to Weisman’s ownership of Sedgwick’s work product in connection with the motion picture “CIAO! MANHATTAN,” Weisman has the right under his December 1970 contract with Sedgwick to utilize her name, likeness and biography in connection with “advertising or publicizing” the film. (Weisman Dec., ¶3, Ex. 9.) However, Weisman has not established a basis for ownership of the publicity rights in Sedgwick’s name, likeness, and biography unrelated to her work on “CIAO! MANHATTAN.” Nor has he established a basis for ownership of Sedgwick’s publicity rights under Civil Code Section 3344.1. The only contract Weisman had with Sedgwick concerned her services for “CIAO! MANHATTAN.” (Weisman Dec., ¶39.) Further, Sedgwick apparently died intestate, so there was no Will transferring to Weisman (or Post for that matter) any rights to her name, voice, signature, photograph, or likeness. (Weisman Dec., ¶28, Ex. 3.) Under Section 3344.1, in the absence of a contract or testamentary instrument transferring the publicity rights to a deceased personality’s name, voice, signature, photograph, or likeness, such rights belong to the deceased personality’s surviving spouse, children, or parents.

Weisman argues that Sedgwick was not a “deceased personality” within the meaning of Section 3344.1 because her “name, voice, signature, photograph, or likeness” did not have any commercial value at the time of her death. Weisman claims that it was only through his own efforts in publicizing “CIAO! MANHATTAN,” after Sedgwick’s had died, that Sedgwick’s images and likeness attained any commercial value. (Weisman Dec., ¶¶ 8, 20.) The court finds this argument somewhat disingenuous, however, since Weisman clearly believed that Sedgwick was sufficiently well known within the New York cosmopolitan media art-scene to make a movie about her. It is not necessary under Section 3344.1 for the commercial value of the deceased personality to extend to international markets. Section 3344.1 merely requires that the deceased personality’s publicity rights have some value at the time of death, “whether or not during the lifetime of that . . . person the person used his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods.” Civ. Code §3344.1, subd. (h).

Based on the foregoing, the court will deny Weisman’s motion for summary judgment/summary adjudication on his second cause of action for declaratory relief. Plaintiff has not established that he owns the publicity rights to all of Sedgwick’s name, likeness, and biography, other than in connection with her services for the film “CIOA! MANHATTAN,” nor has he established that Post has no publicity rights to Sedgwick and a duty not to claim any such publicity rights adverse to plaintiff.