Case Brief: Reynolds v. Reynolds (In re Estate of Reynolds), 327 P.3d 213 (Ariz. App. 2014)

Case Citation

Reynolds v. Reynolds (In re Estate of Reynolds), 327 P.3d 213 (Ariz. App. 2014).

Facts

Respondent/Appellee wrote two online commentaries about her mother. The first commentary described Respondent/Appellee’s own reaction to her elderly mother’s diminished quality of life and was written while the mother was alive. The second commentary, written after the mother’s death, was a Mother’s Day remembrance of her mother. Petitioner/Appellant, Respondent/Appellee’s sister, was the personal representative of the mother’s estate, objected to the commentaries and filed a claim against Respondent/Appellee for violation of the mother’s right to publicity.

Procedural History

Petitioner/Appellant Estate filed a Right of Publicity claim against Respondent/Appellee. Respondent/Appellee filed a petition to compel closure of the estate, arguing it could not assert any purported right of publicity on behalf of the deceased. The Superior Court of Maricopa County ruled the estate had no claim against Respondent/Appellee.The case was then appealed from the Superior Court in Maricopa County.

Issues

1) Whether a right to publicity exists in Arizona.

2) Whether a claim for a violation of an individual’s right of publicity can survive the individual’s death.

a. Whether A.R.S. § 14-3110 (2014) bars the estate’s claim for violation of the right of publicity because the tort originated as a variety of invasion of privacy.

3) Whether the right of publicity is descendible and thus whether the estate may assert a claim for a violation of right of publicity stemming from content that was published after the mother’s death.

4) Whether a postmortem right of publicity only exists if the decedent exploited such a right during his or her lifetime.

5) Whether the commentaries at issue were expressive works exempted from liability under Restatement Third § 47.

6) Whether Respondent/Appellee published the commentaries for a financial benefit, thereby constituting unauthorized use of the mother’s name or likeness for commercial purposes.

Holdings

1) Yes. The court adopted the Restatement Third’s view that an individual has a right of publicity that protects his or her name or likeness from appropriation for commercial or trade purposes.

2) Yes. The court concluded that A.R.S. § 14-3110 does not except from the general rule of survival a cause of action for violation of an individual’s right of publicity, and therefore a claim arising from content published while the mother was alive, may survive her mother’s death.

3) Yes. The court held that the right of publicity is descendible and survives the death of the holder, and therefore may be enforced by a decedent’s estate.

4) No. The court held that an estate’s right to assert the decedent’s right of publicity is not conditioned on exploitation of the right during the decedent’s life.

5) Yes. The court held that the commentaries were indeed expressive works exempted from liability under the Restatement, and thus could not give rise to a claim for violation of the right of publicity.

6) No. The court held that the commentaries did not constitute the unauthorized use of name or likeness for commercial purposes merely because they were published for financial benefit.

Rationale

1) The court reasoned that according to Restatement Third § 46, cmt. d, the identity of even an unknown person may possess commercial value and that case law provides that in the absence of Arizona law to the contrary, the court generally follows the Restatement.

2) The court looked to the language of the statute and determined that it excluded only a handful of deeply personal claims, whereas the right of publicity is more akin to a property right whose breach is measured in pecuniary loss than a personal right whose violation results in emotional injury. The court further reasoned that even if the right of publicity was treated as a variety of invasion of privacy, the Restatement expressly allowed such a claim to survive the death of the holder.

3) The court reasoned that applicable case law holds that as a property right, the right of publicity is freely assignable and an assignment transfers ownership to the assignee, who has standing to assert the right against others.

4) The court reasoned that the Restatement provides that although commercial exploitation prior to death can be relevant in establishing the value of the appropriated identity, it should not be required as a condition of descent, and that the overwhelming majority of jurisdictions concur.

5) The court considered that Restatement § 47’s provision of a cause of action against one who appropriates the commercial value of a person’s identity “for purposes of trade” does not include the use of a person’s identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses. The court reasoned that because the commentaries disclose personal details about the mother, the commentaries were akin to an unauthorized biography, which under case law plainly may not give rise to a claim for a violation of the right of publicity.

6) The court reasoned that Restatement Third § 47 makes clear that the mere sale of an expressive work that uses one’s name or likeness does not constitute use of the other’s identity “for purposes of trade” as required to give rise to a claim for relief.

Disposition

The court affirmed the superior court’s ruling and held in favor of Respondent/Appellee.

By Katelynn Merkin, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.

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