Archive for October 29, 2007

The Elusive Sarah Gilbert

October 29, 2007 Craig Uncategorized

I’ve blogged quite a lot about Sarah Gilbert Johnson, wife of Ezekiel Johnson, and my great-great-grandmother. She appears in the marriage records of Clay County, Missouri, at the time of her marriage to Grandpa Zeke and in the 1880 census for Kansas City, Missouri. Then she appears of record no more.

I’ve been over and over the available materials. Indeed, a key purpose of my big research trip to Missouri this past summer was to find more on Sarah Gilbert. I found nothing new. I talked to several cousins descended from Zeke and Sarah Johnson, but none knew anything about Sarah.

Here’s what I know about her: she and Zeke Johnson were married in Clay County, Missouri, on September 5, 1867. On the 1880 census, her age is given as 31. If that’s true, she would have been born in about 1849. Her children are listed as Henry, 11; Mary, 10; Richard, 8; Ambrose, 6; Robert, 4; and Mattie, 1. I’ve since discovered that Mary (my great-grandmother) was in fact the oldest and not Henry. “Ambrose” was actually named Amos. I have death certificates for Mary, Richard, Amos, and Robert. Of Henry and Mattie, I know nothing beyond the 1880 census data. [Actually, the problem with Henry is that "Henry Johnson" is such a common name. I have identified some records that are "possibly" the "right" Henry Johnson].

Grandpa Zeke died in 1933. But in 1920, he was living with Richard and listed as widowed. So Sarah must have died before 1920. Noting that there seems to be no death certificate for her in Missouri’s excellent 1910-1956 death certificate database, one might surmise that she died before 1910. This is a situation in which an 1890 census would be a great help. Her last child seems to be Mattie, born in 1879. She would have been just thirty years old. Perhaps then she died between 1880 and 1920.

There is one other strange thing that appears concerning Sarah Gilbert Johnson. There is a death certificate for one Robert Franklin Johnson who died on May 17, 1955. One might presume that this would be Sarah and Zeke’s son, Robert, who according to the 1880 census, was born in about 1876. But the birth date on the death certificate is November 23, 1891. And the mother’s maiden name is given as “Sarah Agnes Lewis.”

The place of death on the Robert Franklin Johnson death certificate is given as “2444 Chestnut Avenue” in Kansas City, Missouri. On May 17, 1955, that house would have been occupied by my great aunt Rosetta Bell Long, and perhaps my grandmother, Annie Florida Corrine Long and her daughter, my aunt Delorise Gines. Rosie and Flo Long were sisters and the granddaughters of Zeke and Sarah. In May, 1955, Grandma Flo would have been 53 years old, and Aunt Rosie would have been 55 years old. And indeed, the informant is stated to be “Rose Long” of 2444 Chestnut Avenue.

But why did Aunt Rosie get Robert’s birth date wrong by 15 years? And who is “Sarah Agnes Lewis”?

Yesterday, Lorine McGinnis Schulze blogged about the potential inaccuracies of primary records. She gives the (actual) example of a 17 year old informant who may have been confused by the questions asked by the official making out a death certificate. But Aunt Rosie was a mature, educated and experienced woman. How could she have made these mistakes?

The week before Robert Franklin Johnson died, my grandfather, William Edward Gines died. Could Aunt Rosie confused some of his information with that of her uncle? The informant on my grandfather’s death certificate was “Harry Gines” [most likely his brother Henry]. Harry got everything right. My grandfather was born on August 10, 1898, and his mother was Sylvia LeJay [which is misspelled "LaJay" on the death certificate]. None of this information is similar to Robert’s.

So what happened here? How did Sarah Gilbert manage to elude me once more?

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Can DNA Solve "The Lumbee Problem"?

October 29, 2007 Craig North Carolina

How does a group of people who have American Indian ancestry but no records of treaties, reservations, Native language, or peculiarly “Indian” customs come to be accepted–socially and legally–as Indians?

That question is asked on the jacket of the 2001 printing of The Lumbee Problem–The Making of an American Indian People by anthropologist Karen I. Blu (University of Nebraska Press, 2001; copyright 1980, Karen I. Blu). And that’s just the surface of “the Lumbee problem.”

Suppose Scots-Irish settlers in North Carolina in the early eighteenth century came upon a group of people who in some ways seemed to be indigenous, but spoke seventeenth century English and had English names. History or an episode of the Twilight Zone?

Indeed, this seems to be the history of the Lumbee Indians of North Carolina. But who are they really? Are they Indians? What is their origin?

A prominent theory is that the Lumbees are descendants of Native Americans and survivors of the Lost Colony of North Carolina.

In 1587, a group of colonists under Sir Walter Raleigh’s charter landed in the Outer Banks of what is now North Carolina. This was the second or third group of colonists in the area. One group had returned to England with Sir Francis Drake. The latter group was headed by Governor John White. White returned to England to re-supply the colony; his voyage back to America was delayed by the complications of the English war with Spain and the winter weather. When White did return in 1590, the colonist were gone, but strange “clues” were found. The word “Croatan” was found carved in the wall of a structure that had been built by the colonists. The colonists were never found.

In the early 1700′s, Scots-Irish settlers came upon English-speaking people in the interior of southeastern North Carolina. These people appeared to be of mixed race. It is said that in the early censuses, these people were enumerated as “mulattoes” or “free Negroes.” The people themselves claimed to be Indians. They waged a legal and political struggle in t he nineteenth century for recognition as Indians.

The federal government never has recognized the Lumbee as tribal Indians. In the late 1800′s, the state of North Carolina recognized them as the “Croatan Indians.” This name was not fully satisfactory to the people so designated and in the 1950′s, the name was changed to Lumbee.

The truth of the origins and identity of the Lumbee has been complicated by a number of political and sociological problems. Among these problems would be the fact that there were black people in the area where the Lumbees were found and it may be difficult to tease out which of the “mulattoes” or “free Negroes” were Indian and which were of African descent.

There are several distinct surnames that occur among the Lumbee. These include Oxendine, Chavis, Locklear, Dial, Lowry, and Brayboy, among others. Some of these surnames occur with high frequency among Africian-Americans. Brayboy, for instance, is one of the surnames in my family tree.

My Brayboy ancestors lived in Louisiana and South Carolina. They had been taken to Louisiana in bondage from South Carolina. The question, however, is whether they are related to the Lumbees. Perhaps DNA can solve my Lumbee problem.

I understand that DNA generally cannot pinpoint a specific Native American tribe. But the Lumbee are an especially insular people, thought to number about 40,000, mostly in Robeson County, North Carolina. Under these circumstances, perhaps DNA can tell us about links to the Lumbee.

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Southern California Fires: Genealogical Events

October 28, 2007 Craig Family History, Genealogy

Our fellow genea-blogger, Randy Seaver, was as close to the recent California fires as anyone we know and he reported and “mused’ about them last week. It was a reminder that “all history is personal.” [An Air Force general I know told me that once--he doesn't claim to have originated it].

Randy and his family are safe, but as we know, many families lost everything. Talk about making family history! Natural disasters like hurricanes, earthquakes and wildfires (some of the latter, of course, not being completely “natural”) are always genealogical events. They change the course of family history for those who experience them–victims and responders alike.

Some will lose their homes and have to move somewhere else; others, unfortunately, will lose their lives. The effects may be felt for generations yet to come: lives that will change; lives that will move; lives that will never be the same; some lives that simply never will be. May they all find the peace they need in this moment.

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Genealogy Law Quiz Answers

October 26, 2007 Craig Genealogy

The fall semester will be over soon at Pacific McGeorge School of Law, so I thought I’d practice for the grading season with the quiz that appeared here a couple of days ago. BTW, every one who tried it got a passing grade. Here’s the “model answer”:

Copyright Infringement

The first claim against Delia is Al and Bert’s action for copyright infringement. The first issue here is whether Al or Bert or both of them own the copyright in the diary in order to permit them to sue for copyright infringement. The diary was written by their mother. From what we can tell, the diary was never published before Delia got her hands on it. Likewise, from what we know, there is no evidence that a copyright was ever registered for this work.

The Copyright Act provides that copyright protection subsists in original works of authorship fixed in any tangible medium of expression. The copyright in a work of authorship immediately becomes the property of the author. It is not necessary to publish the work or register the copyright.

Thus, Delia’s grandmother owned t he copyright when she wrote the diary. Copyrights may be transferred or sold. We are not told whether Delia’s grandmother transferred the copyright during her lifetime. Assuming, therefore, that she did not transfer it during her lifetime, the copyright could pass as part of her decedent’s estate. That is what most likely happened here.

We are not told whether Grandma had any heirs other than Al and Bert, or whether she had a will. In any event, it is reasonable to assume that Al and Bert were her heirs and that they became owners of the copyright at her death.

We do not know when the diary was “created.” If it was created on or after January 1, 1978, then the copyright protection lasts for 70 years after the death of the author. Certain works copyrighted before January 1, 1978 may have copyright protection for as long as 120 years depending on the circumstances of their registration or renewal. We therefore may assume that Grandmother’s copyright is still “good” and owned by Al and Bert.

The fact that Delia had physical possession of the diary does not affect the ownership of the copyright. (Query whether when Al said to Delia, “Help yourself to anything in [the trunk],” not being aware of the diary, he intended to make a gift of any of his property in the trunk, including the copyright to the diary. Answer: this is probably ineffective to transfer the intangible property such as the copyright).

The next issue is whether Delia infringed the copyright to the diary when she published a portion of it on her blog. Copyright infringement occurs when a copyrighted work is published without t he permission of the owner. However, the doctrine of “fair use” is a limitation on the rights of the copyright owner. Section 107 of the copyright law sets forth four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In Delia’s case the purpose and character of the use was non-commercial. A court presumably could consider that a purpose of her use was vengeance and that she acted in anger toward her relatives, which would tend not to favor “fair use.”

The nature of the copyrighted work in Delia’s case likely favors a finding of “fair use.” The work is her grandmother’s diary, given to her by her uncle, who didn’t even know he had it.

Another factor tending to favor “fair use” in this case is the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Delia used but one paragraph of a diary that had been kept “for many years.”

Finally, with respect to the effect of the use upon the potential market for or value of the copyrighted work, it is unlikely that Delia’s use of the one paragraph damaged in any significant way. We have no reason to believe that there exists very much of a market for Grandma’s diary or that there is any significant value to be had for Grandma’s diary from anyone except the parties here themselves.

As a result of the foregoing analysis, “fair use” is likely a strong defense for Delia.

Defamation

To create liability for defamation, there must be (1) a false and defamatory statement concerning another person; (2) an “unprivileged” publication of that statement to a third party; and (3) negligence or some greater fault on the part of the person making the statement. The wronged party must suffer some damages or in some cases, need not suffer particular damages where the statement is “defamatory per se.”

Al’s Claim of Defamation

Al must show that Delia published a false and defamatory statement about him and that the publication was unprivileged. The statement that “My sons have been nothing but woe to me,” could be deemed defamatory in that a statement by a mother that her sons have been “woeful” tends to harm the reputation of the sons by lowering them in the estimation of the community. But this is probably not defamatory per se, so Al must show some special damages from publication of the statement. For instance, Al might show that his business was damaged because people did not want to deal with someone who was not nice to his mother. Of course, Al must also show the statement is false. We have no information abut that.

The statement that “[Al's] a thief and a liar,” is defamatory per se and Al need not show any special damages as a result of publication of that statement. He, however, must show that it is false.

Bert’s Claim of Defamatiom

See above for discussion of the statement, “My sons have been nothing but woe to me.” Bert will also claim that the statement “Bert is worse” is defamatory in that it makes him out either as a worse “thief and liar” than Al or even worse than “a thief and liar.” In either circumstance, the statement is defamatory per se. Of course, he must show that the statement is false.

Bert will also claim that the statement that “Bert’s wife, Catherine, is a sl**,” defames him in that “sl**” will be clearly understood to mean “slut,” and he will be harmed in his reputation by the innuendo that he consciously or unknowingly married a woman of low virtue. This statement is not defamatory per se, as to Bert and he will have to show some special damages. Likewise, he must show that the statement is false.

Catherine’s Claim of Defamatiom

Of course, the statement that “Bert’s wife, Catherine, is a sl**,” if false, is defamatory per se as to Catherine. She need not show any special damages.

Invasion of Privacy

Al’s claim

Al may claim invasion of privacy on two grounds: (1) public disclosure of private facts; and (2) publicity placing in him in a false light to the public. Concerning the first, one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, (b) is not of legitimate concern to the public, and (c) is publicized without permission. Al will argue that the details of his relationship with his mother constituted private facts, the disclosure o f which was highly offensive, and not of legitimate concern to the public. We have no reason to believe that Al is a public figure, so generally speaking, his relationship with is mother indeed would be a private matter.

As to Al’s second ground for invasion of privacy: Giving publicity to a matter concerning another that places the other before the public in a false light is an invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Al will claim that Delia’s disclosure of his mother’s sentiments about him placed him in a highly offensive false light. However, Delia may not have had knowledge of the falsity of Grandma’s statements. On the other hand, this very lack of knowledge on Delia’s part will work against her. By publishing the statements out of anger and making no attempt to discover whether they were true or not, Delia has acted in reckless disregard of the truth or falsity of the statements. On that basis, she may be held liable.

Bert’s Claim to Invasion of Privacy

Bert’s claim to invasion of privacy on the basis of “false light” is the same as his brother Al’s. Bert’s claim to invasion of privacy on the basis of public disclosure of private facts is also the same as Al’s. But Bert has an additional claim: that the disclosure that Delia is not his biological daughter is an invasion of privacy. This disclosure would be highly offensive to someone wishing to keep it private and is not of legitimate concern to the public. The final element is that the disclosure be made without permission. Since it was Delia who was adopted and Delia who made the disclosure, may she argue successfully that she was entitled to make this disclosure? Answer: Just because Delia was involved in the private facts does not give her a right to disclose it as it affects her parents.

Catherine’s Claim to Invasion of Privacy

Catherine’s claim to invasion of privacy is both a “false light” claim and a “disclosure of private facts” claim. The false light claim is based on the publication of the statements that “Bert’s wife, Catherine is a sl**,” and “I know she had an affair.” Catherine’s “disclosure of private facts” claim is the same as her husband Bert’s.

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Interviews with TGN CEO

October 26, 2007 Craig Uncategorized

Earlier this week, Kimberly Powell snagged an important interview with Tim Sullivan, CEO of The Generations Network, parent company of Ancestry.com. The interview came on the heels of the acquisition of TGN by a private equity firm.

But yesterday, Chris Dunham got the real scoop. See his ground-breaking interview here.

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Law and Genealogy–A Quiz

October 24, 2007 Craig Genealogy

One afternoon, Delia, a family historian, decided to rummage around her uncle Al’s attic. She came across a locked trunk that she recognized as having belonged to her grandmother. Delia asked Al if she could see what was in the trunk. Al, knowing of his favorite niece’s obsession with genealogy, said, “Sure. Help yourself to anything in it.” Al, the older of two brothers, had been his mother’s executor, but had not bothered to look into the trunk.

Delia found many of her grandmother’s things in the trunk, but what most interested her was a diary her grandmother had kept for many years. Delia took the diary and began to read it.

At one point, Delia’s grandmother had written:

My sons have caused me nothing but woe. Al is a thief and a liar. The only reason I named him my executor is that his brother Bert [Delia's father] is worse. Bert’s wife, Catherine, is a sl**. I’m sure she had an affair–Delia is not Bert’s natural-born daughter.

Delia was devastated by what she read. She had always suspected that Bert was not her real father. Now she thought she knew the truth. [In fact, Bert and Catherine had adopted Delia. Both were faithful to their marriage vows].

Angry that this secret had been kept from her, Delia published this portion of her grandmother’s diary on her blog for an edition of the Carnival of Genealogy on “Uncovered Family Secrets.”

When Delia’s uncle and parents discovered the publication of the diary, they were outraged. Al and Bert are now suing Delia for copyright infringement. Al, Bert, and Catherine are all suing Delia for defamation and invasion of privacy.

Discuss the viability of the claims against Delia.

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More Genealogical Law: Invasion of Privacy

October 23, 2007 Craig Genealogy

We’ve talked about defamation, but a far more serious issue for genealogists is “invasion of privacy.”

The law generally recognizes four distinct “wrongs” that may constitute “invasion of privacy:” (1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity placing a person in a false light; (4) misappropriation of a person’s name or likeness. Each of these generally refers to conduct that is “highly offensive to a reasonable person.”

Intrusion into Private Matters

This form of invasion of privacy may be a physical intrusion into a place where a person reasonably expects privacy, or it may be an unreasonable prying into a person’s private affairs. Entering into someone’s dwelling, or hotel room, or backyard without permission would be an invasion of privacy. Going through someone’s trunk or locker without permission likewise would constitute an invasion of privacy. Wiretapping, eavesdropping, peeping, all are invasions of privacy, even if nothing is overheard or observed.

Reading someone’s diary or examining their medical records without permission would be an invasion of privacy. Getting private information about a person from someone who is not authorized to reveal it would be an invasion of privacy where it is known that the revealer is without authority.

Repeated telephone calls or visits to someone who has expressed a desire for no calls or visits is an invasion of privacy.

Note that in this first form of invasion of privacy, there need not be any publication or use of information.

Keep in mind that the dead have no privacy rights and that which has already been made public cannot support a claim of invasion of privacy. A person must have a reasonable expectation of privacy and must act to keep his or her affairs private in order to make a successful claim of invasion of privacy.

Genealogists are not private detectives, and being generally decent people, I don’t imagine that they’d be eavesdropping, reading someone’s diary, or making multiple harassing telephone calls in pursuit of genealogical information.

Public Disclosure of Private Facts

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, (b) is not of legitimate concern to the public, and (c) is publicized without permission. Now this is an area in which genealogists could get into some trouble.

There is no liability for merely giving additional publicity to information that is already public. So, for example, it generally would not be an invasion of privacy to publish facts about someone’s life that are matters of public record, such as the date of his birth [but see below], the
fact of his marriage, his service in the military, the fact that he holds some professional or occupational license, or that he graduated from a particular school.

Recall that there can be no invasion of privacy concerning matters that are already public and that a person must have a reasonable expectation of privacy in the matter. Also, the disclosure must be “highly offensive to a reasonable person.”

I would caution that this area is constantly evolving. Ten years ago, it was easy to say that a person had no reasonable expectation of privacy in the fact of his birth on a certain date or who his parents were. Today, however, with some states and local jurisdictions making birth and death records confidential, it’s no longer clear that a person in such a jurisdiction doesn’t have a reasonable expectation of privacy in this information. But consider that under the law most places, the publication of private facts must be “highly offensive.” Depending on how it is presented, the publication of a date of birth might fall short of that test.

With respect to genealogy, consider, for example, that the placement of a child in a family due to a “non-paternity event,” such as adoption, may be considered private by a family even where adoption records are not highly restricted by the state. [The fact that a child is in a particular family is a public fact--how the child got there might be a private matter].

Publicity Placing A Person in a False Light

Giving publicity to a matter concerning another that places the other before the public in a false light is an invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

This wrong has things in common with defamation, but the matter publicized need not be defamatory. The American Law Institute says that invasion of privacy in this form exists “only when there is such a major misrepresentation of [a person's] character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable [person] . . . .”

In this wrong, it would be possible to liable for, for example, misrepresenting someone’s race, without that being defamatory. It would be possible to negligently commit this wrong by, for example, confusing one person for another. It’s also possible to commit this wrong with facts that are individually true, but out of context.

Misappropriation of a Person’s Name or Likeness

This form of invasion of privacy is committed by one who appropriates to his own use or benefit the name or likeness of another. In some states, this is limited to commercial use; in other states, the appropriation need not be for commercial purposes. Here’s another area where genealogists can fall into traps.

Suppose you use a photograph on your genealogical website without the consent of the persons depicted in that photograph. This use may constitute a misappropriation of those persons’ names and likenesses, if you intend to benefit from that use.

This may seem similar to the “right of publicity” discussed here the other day; however, this is not so much about the commercial aspects as it is about “the right to be let alone.” Also, since this is about privacy and not publicity, this right is not inheritable, nor does it apply to the deceased.

So that’s a sketch of the law on invasion of privacy. Ready for a short quiz? Okay, we’ll wait a day or so!

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Avoid Defamation

October 19, 2007 Craig Genealogy

Defamation in genealogical publishing is not a tremendous problem for several reasons. First, the law does not recognize defamation of dead people. This fact is combined with the practice of most genealogists not publish information about living people without permission of those people. The third fact is that things thought defamatory in the past are, for cultural reasons, no longer regarded as defamatory. For example, it was once held by by courts in Mississippi, Virginia, Alabama, and Louisiana that to suggest that “a white man is a Negro” would be defamatory. It is unlikely that any court would so rule today.

Another reason that defamation is not a big problem in genealogy is that “public figures” and “public officials” are held to a higher standard to prove defamation. A “public figure” or “public official” must prove that the defamatory statement was made with “actual malice.” “Actual malice” means to know that the statement is false or to publish the statement with a reckless disregard for the truth or falsity of the matter. As a result, a”public figure” or “public official” will rarely bring a defamation suit.

The situations in which defamation may arise in genealogy are rather limited. One example is where one writes about a family in a way that reasonably could be understood to refer to still living members of the family. Suppose one writes, “All those Sanfords in Texas are crooks.” Present members of the Sanford family living in Texas probably have a good case! Here are some ways to avoid defamation:

1. Write only about dead people, unless you have explicit permission to write about living people.
2. Stick to documentable facts; don’t speculate about things that may harm someone’s reputation.
3. Document; document; document!
4. Avoid repeating gossip that can’t be confirmed.
5. If you’re not comfortable with something you’ve written, get a secound, hopefully neutral opinion, before it is published.

Notice: The information in this writing is intended for educational use only and is not intended nor should it be construed as legal advice. If you have a legal problem, consult a lawyer admitted to practice in your state of residence. I am an active member of the bar of the State of California and I am admitted to practice before the United States Supreme Court and various other federal courts. I am not licensed to practice in any other state. I am not presently soliciting or accepting new clients in the matters discussed above.

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Another Law Lesson: A Most Excellent Question

October 19, 2007 Craig Genealogy

I had intended Thursday’s post to focus on avoiding defamation in genealogy. But then I saw this comment from Chris Dunham:

What are your thoughts on that John Dillinger story I blogged about a few months ago? Which uses of Dillinger’s name can be controlled by his relatives, and which fall under the “dead people cannot be defamed” rule?

A most excellent question!

The answer is that while the dead can’t be defamed as such, the dead (or some of them) can be “disparaged.” I explain what I mean below.

In many states, the law protects a “right of publicity.” This right of publicity is simply the right of a person to control the commercial use of his or her identity. The right of publicity is a valuable property right, protecting the commercial value of a celebrity’s identity or likeness. A person desiring to make commercial use of a celebrity’s name, voice, signature, photograph, or
likeness thus must get the consent of the celebrity. Note this applies to commercial use, and not to use in a news story, for example.

In 1979, the California Supreme Court considered two cases, Lugosi v. Universal Pictures, 25 Cal.3d 813, and Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, raising the issue of whether this right of publicity survived the death of the holder of the right. [Everyone knows that Bela Lugosi (nee Béla Ferenc Dezs? Blaskó) played "Dracula" in the 1931 film of the same name; congratulations to those who knew that Rodolfo Alfonso Raffaello Piero Filiberto Guglielmi (1895-1926) was also known as Rudolph Valentino!]

In the Guglielmi case, the studio had exhibited on television a “fictionalized version” of Valentino’s life, depicting the actor’s name, likeness and personality without obtaining the prior consent of either Valentino or his legal heir. The heir sought damages and injunctive relief on the theory that the studio had misappropriated Valentino’s “right of publicity,” and that Valentino’s legal heir was the present owner of that right. In the Lugosi case, the actor’s heirs sought an injunction against and an accounting for profits from the studio which had licensed the use of the image of the actor as Dracula on a variety of commercial products.

In both cases, the California Supreme Court held that the right is not descendible and expires upon the death of the person so protected. In 1984, responding to those cases and several other similar cases, the California Legislature enacted a statute that gave to the heirs of a deceased personality the commercial rights in that deceased personality’s name, voice, signature, photograph, or likeness. As a result, if one desires to use the name, voice, signature, photograph, or likeness of, say, Elvis Presley, in a commercial context in California, one must have the permission of the Presley Estate. The heir’s rights are valid for seventy years after the death of the celebrity. A person who violates the heirs’ right may be liable for damages, including punitive damages.

A number of states now have similar statutes.

In the Dillinger case that Chris referred to, Dillinger’s heirs have rights to his “right of publicity” for 100 years after his death under an Indiana statute.

Although the dead cannot be defamed, since heirs control rights to publicity, the heirs may refuse to license any use which they feel disparages the deceased. Frankly, they may refuse to license any particular use for just about any reason at all.

Again, note that the heirs control only commercial uses. That usually does not include scholarly works, even if those works are going to be sold.

This right of publicity isn’t limited to rich movie stars. Theoretically, anybody has such a right; it’s a question of how much it’s worth!

So tomorrow, back to defamation.

Notice: The information in this writing is intended for educational use only and is not intended nor should it be construed as legal advice. If you have a legal problem, consult a lawyer admitted to practice in your state of residence. I am an active member of the bar of the State of California and I am admitted to practice before the United States Supreme Court and various other federal courts. I am not licensed to practice in any other state. I am not presently soliciting or accepting new clients in the matters discussed above.

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Obituary: Victoria Ann Rogers

October 18, 2007 Craig Uncategorized

Victoria Ann Rogers, born on July 3, 1946, in Santiago, Chile, passed away at her home in Sacramento on October 12, 2007. Vicky is survived by her daughter Cynthia Thompson and husband Jeff, son Ian Rogers, grandchildren Dana, Celina and Nicholas Thompson, siblings Jim Pisano and Vivian Pisano, and a large extended family. A graveside funeral service will be held on Friday, October 19, at 10:00 AM at East Lawn Memorial Park, 43rd Street and Folsom Boulevard, Sacramento, California.

Vicky Rogers was my court reporter when I was a Judge of the Superior Court in Sacramento County from 1998 to 2002. She had retired not long ago. She was well-liked by court staff, lawyers and litigants. She did a great job and had a great sense of humor. She loved her family and her job. We will miss her very much.

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