O. J. Simpson – The Fight for Publicity Rights
After being held civilly liable for the murders of Nicole Simpson and Ron Goldman, OJ Simpson hid his considerable assets from his victims’ families. While a significant sum was tied up in Simpson’s Florida home, the rest vanished into thin air. Although private detectives diligently sought secret Caribbean bank accounts and bogus real estate holdings, all their efforts to locate OJ Simpson’s assets proved futile.
It occurred to me the solution was literally staring me in the face. Simpson’s name and likeness rights were valuable intellectual property, hiding in plain sight.
After all, copyrights, another form of intangible intellectual property, had long been recognized as property subject to the jurisdiction of bankruptcy courts. A person’s name and likeness, however, which at first glance seemed to be another matter altogether.
Name and likeness rights had long been considered personal property rights, inextricably tied to the individual. It seemed counter-intuitive a person could give his identity to someone else, much less have it involuntarily removed to pay his debts. Indeed, like a modern-day Shakespearean play, one could more easily remove a pound of flesh without shedding a single drop of blood. Just then, however, the specter of Bella Lugosi arose to save the day.
After Bela Lugosi’s death in 1955, Universal Pictures entered into profitable licensing agreements, based upon Lugosi’s iconic portrayal of Count Dracula. In 1966, the wife and son of Bela Lugosi sued Universal Pictures, demanding payment for marketing his inheritable name and likeness property rights.
While the concept of a person’s identity existing as a separate property right seemed counter-intuitive, technology had advanced to the point where such a right could, in fact, exist. Before the age of film, a person’s likeness disappeared into thin air upon their death, with the sole exception of their portrait. After the advent of movies, however, an individual’s image not only continued to exist after death, but it could be easily replicated and distributed across vast distances. It was only a matter of time before a deceased individual’s image would be monetized, as well.
For eleven years, the battle raged in California Courts. In 1977, the judge ruled Lugosi’s name and likeness were property rights, inherited by his family. The court awarded the family $70,000 and prohibited Universal Studios from marketing Lugosi’s name and likeness.
Universal, however, appealed the decision. In 1979, the California Supreme Court overturned the lower court’s decision, ruling name and likeness rights were personal rights that ended upon a person’ death. It seemed the rights of the world’s most famous vampire were destined to lie in the grave forever, never to rise again.
Actors in California were aghast at the ruling. Having driven a stake through the heart of the matter, the Court had effectively denied celebrities the right to pass the fruits of their labor on to their families.
After much lobbying by celebrities, the California Celebrity Rights Act of 1986 resurrected the entire matter by creating an inheritable right to a person’s name and likeness for 70 years after their death. In 2007, this right was extended retroactively to all persons who died after January 1, 1938. In the years following, many states have created an inheritable name and likeness property right. In Indiana, that right continues for 100 years after a person’s death.
The issue of whether such a property right could be forcibly taken from a living individual remained unresolved, however. Continental’s team of investigators and attorneys met with the Goldman family in 2006 and decided to move forward with litigation to seize OJ Simpson’s name and likeness.
When the lower court refused to grant Goldman relief, the entire matter took an unexpected turn. Simpson had written a book, If I Did It. Our strategy then focused on obtaining control over the profits generated by the manuscript. As a part of our strategy, we created the web site, Don’t Pay OJ. Our team was successful and the resulting publicity scuttled OJ Simpson’s upcoming TV interview.
While no appeal was filed regarding the seizure of Simpson’s name and likeness rights, the specter of stripping a living celebrity of their identity, to satisfy an outstanding judgement, remains. It is, indeed, a valuable asset, hiding in plain sight.