We received the 9th Circuit court’s opinion today in the Experience Hendrix v. Pitsicalis case, and reporters and colleagues have been blowing up our phones and email.
Although this does not affect my clients’ rights nationally, the strange result of the 9th Circuit’s ruling today would be that a Jimi Hendrix product sold by his brother Leon Hendrix’s company — within Washington State only — may have issues.
In a modern economy, allowing one state to elect to control what celebrity-based products can and cannot be sold within its borders is an odd result and will surely lead to further litigation.
Thus, my clients will have no choice but to pursue legal recourse at the trial and appellate level to restore Judge Zilly’s common sense ruling against Washington’s outlier status.
Up until yesterday, there was certainty about publicity rights. The law of place where the person lived when he/she died controlled. Tons of cases back this up.
As of 8:43 a.m. Wednesday, however, that isn’t so sure anymore.
Now, where someone died may have nothing to do with their rights in their name, likeness and image. Instead, it may just be up to the individual states where things bearing those names, likenesses and images are sold. Fifty different possible standards. Makes national marketing and distribution a nightmare.
So we are going to have to try and do something about it.
My client, Andrew Pitsicalis, as CEO from the side of co-owner Leon Hendrix, Jimi Hendrix’s brother, offers a personal reflection on the decision:
“Even though this decision doesn’t affect our use of Jimi Hendrix’s personality rights nationally, we are saddened that Jimi’s adopted stepsister continues to litigate to attempt to gain sovereignty of Jimi Hendrix solely in the state of Washington, and monopolize it for herself. Leon Hendrix is saddened that she already had the estate and the music. He asks, ‘What happens to my legacy and my children and direct cousins of Jimi who live in Seattle, who aren’t wanted or allowed to be part of the estate because of my adopted stepsister’s desire to control everything Hendrix in Washington? We have been stripped of rights in our own state where Jimi and his relatives grew up and live. Would that be something Jimi would have wanted, for his brother, nieces, nephews and cousins not to have the right to benefit from his estate?'”
So now we are going to have to take a hard look at our options. There is rehearing with the 9th Circuit itself or even the Supreme Court. We have to ask for that, though, and it’s up to the Court to decide if they want to hear it.
At the same time or after we can also start a new action at the trial level. And we can build the kind of record of impact on commerce and effects out of Washington State the Court wanted to see. Maybe we will do both.
Regardless, I promise you this: yesterday’s ruling was a battle, not the war, so stay tuned for more.