right of publicity claim in California

2013A “subsidiary inquiry” that courts may employ, particularly in close cases, is to ask whether “the marketability and economic value of the challenged work derive primarily from the fame of the celebrity.” (Comedy III, supra, 25 Cal.4th at p. 407.) If the answer to this question is “no,” and if the value of the work instead derives from the creativity, skill, or reputation of the artist, then the First Amendment protects against a right of publicity claim.

2011(Comedy III, supra, 25 Cal.4th at p. 405 .) Thus, the trial court did not err in denying Activision’s motion to strike the right of publicity claim based on Activision’s assertion of a First Amendment defense. 7 B.

2011Moreover, while the principle of restraint in deciding constitutional issues has broader application, we are also mindM that courts must “ ‘ “ ‘closely scrutinize waivers of constitutional rights’ ” ” and “ ““ “indulge every reasonable presumption against a waiver” ’ ” ’ ” of First Amendment rights, which “ ‘ “may only be made by a ‘clear and compelling’ relinquishment of them.” ’ ” (Sanchez v. County of San Bernardino (2009) 176 Cal.App.4th 516, 528 [ 98 Cal.Rptr.3d 96 ]; see Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1400 [ 88 Cal.Rptr.2d 843 ].) Given these circumstances, we believe th

2011Moreover, while the principle of restraint in deciding constitutional issues has broader application, we are also mindM that courts must “ ‘ “ ‘closely scrutinize waivers of constitutional rights’ ” ” and “ ““ “indulge every reasonable presumption against a waiver” ’ ” ’ ” of First Amendment rights, which “ ‘ “may only be made by a ‘clear and compelling’ relinquishment of them.” ’ ” (Sanchez v. County of San Bernardino (2009) 176 Cal.App.4th 516, 528 [ 98 Cal.Rptr.3d 96 ]; see Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1400 [ 88 Cal.Rptr.2d 843 ].) Given these circumstances, we believe th

2011Moreover, while the principle of restraint in deciding constitutional issues has broader application, we are also mindM that courts must “ ‘ “ ‘closely scrutinize waivers of constitutional rights’ ” ” and “ ““ “indulge every reasonable presumption against a waiver” ’ ” ’ ” of First Amendment rights, which “ ‘ “may only be made by a ‘clear and compelling’ relinquishment of them.” ’ ” (Sanchez v. County of San Bernardino (2009) 176 Cal.App.4th 516, 528 [ 98 Cal.Rptr.3d 96 ]; see Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1400 [ 88 Cal.Rptr.2d 843 ].) Given these circumstances, we believe th

2011Moreover, while the principle of restraint in deciding constitutional issues has broader application, we are also mindM that courts must “ ‘ “ ‘closely scrutinize waivers of constitutional rights’ ” ” and “ ““ “indulge every reasonable presumption against a waiver” ’ ” ’ ” of First Amendment rights, which “ ‘ “may only be made by a ‘clear and compelling’ relinquishment of them.” ’ ” (Sanchez v. County of San Bernardino (2009) 176 Cal.App.4th 516, 528 [ 98 Cal.Rptr.3d 96 ]; see Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1400 [ 88 Cal.Rptr.2d 843 ].) Given these circumstances, we believe th

2011(E.g., Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 128-129 [ 105 Cal.Rptr.2d 46 , 18 P.3d 1198 ] [where plaintiff’s complaint asserted both statutory and constitutional grounds for invalidating prison regulation, court would address the statutory issue first]; Santa Clara County Local Transportation Authority v. Guardino (1995) I1 Cal.4th 220, 230-231 [ 45 Cal.Rptr.2d 207 , 902 P.2d 225 ] [where tax was challenged under state statute and state Constitution, it was proper to begin with statutory challenge].) Here, however, we are not being called upon to pass on the constitutio

2011(E.g., Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 128-129 [ 105 Cal.Rptr.2d 46 , 18 P.3d 1198 ] [where plaintiff’s complaint asserted both statutory and constitutional grounds for invalidating prison regulation, court would address the statutory issue first]; Santa Clara County Local Transportation Authority v. Guardino (1995) I1 Cal.4th 220, 230-231 [ 45 Cal.Rptr.2d 207 , 902 P.2d 225 ] [where tax was challenged under state statute and state Constitution, it was proper to begin with statutory challenge].) Here, however, we are not being called upon to pass on the constitutio

2010(Cairns v. Franklin Mint Co. (9th Cir. 2002) 292 F.3d 1139, 1144 (Cairns V).) The Ninth Circuit affirmed all three orders in June 2002.

2010The judgment becomes final and Franklin Mint disburses the funds that had been interpleaded The Fund appealed from the denial of its motion to reinstate the right of publicity claim, the summary adjudication of the false endorsement claim, and the award of attorney fees. ( Cairns v. Franklin Mint Co. (9th Cir. 2002) 292 F.3d 1139, 1144 ( Cairns V ).) The Ninth Circuit affirmed all three orders in June 2002. ( Id. at p. 1159.) At some point after the litigation was over, the $2.5 million that had been interpleaded with the district court was returned to Franklin Mint.

2010The doctrine of collateral estoppel `operates as an estoppel or conclusive adjudication as to such issues as were actually litigated and determined in the first action'" (citing Todhunter v. Smith (1934) 219 Cal. 690, 695 [ 28 P.2d 916 ]); and (3) stating in its opposition to Manatt's motion for nonsuit that "these findings are binding on Manatt under the doctrine of collateral estoppel" (again citing Todhunter ), acknowledging that Manatt had argued that it was not bound because its interests were not represented in the underlying lawsuit, and arguing that Manatt's subsequent admission that i

2010The doctrine of collateral estoppel `operates as an estoppel or conclusive adjudication as to such issues as were actually litigated and determined in the first action'" (citing Todhunter v. Smith (1934) 219 Cal. 690, 695 [ 28 P.2d 916 ]); and (3) stating in its opposition to Manatt's motion for nonsuit that "these findings are binding on Manatt under the doctrine of collateral estoppel" (again citing Todhunter ), acknowledging that Manatt had argued that it was not bound because its interests were not represented in the underlying lawsuit, and arguing that Manatt's subsequent admission that i

2001(See, e.g., Hustler Magazine v. Falwell, supra, 485 U.S. 46 ; see also Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at p. 582 [ 114 S.Ct. at p. 1173 ].) On the other hand, a literal depiction of a celebrity, even if -accomplished with great skill, may still be subject to a right of publicity challenge.

2001(See, e.g., Hustler Magazine v. Falwell, supra, 485 U.S. 46 ; see also Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at p. 582 [ 114 S.Ct. at p. 1173 ].) On the other hand, a literal depiction of a celebrity, even if -accomplished with great skill, may still be subject to a right of publicity challenge.

2001(Russen, at p. 1361; see also Factors etc. Inc. v. Creative Card Co. (S.D.N.Y. 1977) 444 F.Supp. 279 [poster of Elvis Presley labeled “In Memory . . . 1935-1977” did not possess sufficient newsworthiness to be eligible for First Amendment protection].) In Groucho Marx Productions, Inc. v. Day & Night Co. (S.D.N.Y. 1981) 523 F.Supp. 485 , reversed on other grounds (2d Cir. 1982) 689 F.2d 317 , the *403 court considered a right of publicity challenge to a new play featuring characters resembling the Marx Brothers.

2001(Russen, at p. 1361; see also Factors etc. Inc. v. Creative Card Co. (S.D.N.Y. 1977) 444 F.Supp. 279 [poster of Elvis Presley labeled “In Memory . . . 1935-1977” did not possess sufficient newsworthiness to be eligible for First Amendment protection].) In Groucho Marx Productions, Inc. v. Day & Night Co. (S.D.N.Y. 1981) 523 F.Supp. 485 , reversed on other grounds (2d Cir. 1982) 689 F.2d 317 , the *403 court considered a right of publicity challenge to a new play featuring characters resembling the Marx Brothers.

2001(Russen, at p. 1361; see also Factors etc. Inc. v. Creative Card Co. (S.D.N.Y. 1977) 444 F.Supp. 279 [poster of Elvis Presley labeled “In Memory . . . 1935-1977” did not possess sufficient newsworthiness to be eligible for First Amendment protection].) In Groucho Marx Productions, Inc. v. Day & Night Co. (S.D.N.Y. 1981) 523 F.Supp. 485 , reversed on other grounds (2d Cir. 1982) 689 F.2d 317 , the *403 court considered a right of publicity challenge to a new play featuring characters resembling the Marx Brothers.