Cairns v. Franklin Mint: Right of Publicity

The Ninth Circuit held that British law, not California's, governed Princess Diana's post-mortem publicity claim, and because Britain recognizes no such right, the estate's claim failed.

After Princess Diana died in 1997, the trustees of her estate and memorial fund moved aggressively to control the commercial use of her image, suing the Franklin Mint over its unlicensed Diana-themed plates, jewelry, and dolls. They invoked California’s robust post-mortem right of publicity, one of the strongest in the world. But in Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002), the Ninth Circuit, in an opinion by Judge Harry Pregerson, held that California’s statute never reached the case at all. Because the right of publicity is treated as personal property, the law of Diana’s domicile governed, and Great Britain recognizes no post-mortem publicity right. The estate’s claim collapsed on a choice-of-law rule. That decision still defines how far a celebrity estate’s publicity rights travel across borders.

At a glance

Case: Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002), decided June 19, 2002.
Court: United States Court of Appeals for the Ninth Circuit; opinion by Judge Harry Pregerson.
Posture: Affirming the denial of the plaintiffs’ motion to reinstate the dismissed post-mortem publicity claim, affirming summary judgment for the Franklin Mint on the Lanham Act claim, and affirming the award of attorneys’ fees.
Holding: Under California Civil Code section 946’s choice-of-law rule, the post-mortem right of publicity is governed by the law of the decedent’s domicile; Great Britain recognizes no such right, so California’s post-mortem statute did not apply, and the Lanham Act false-endorsement claim failed as a nominative fair use.
Significance: Established that California’s powerful post-mortem publicity statute does not protect celebrities domiciled in jurisdictions lacking the right, sharply limiting the reach of estate-based publicity claims.

The memorabilia and the lawsuit

The Franklin Mint, a maker of collectibles, sold a line of products bearing Princess Diana’s name and likeness without authorization from her estate. The executors of Diana’s estate and the trustees of the Diana, Princess of Wales Memorial Fund sued in the Central District of California, with Cairns and others named as plaintiffs in their representative capacity. They asserted a post-mortem right of publicity under California Civil Code section 990 (later renumbered as section 3344.1) and a false-endorsement claim under section 43(a) of the Lanham Act, contending the products implied Diana endorsed them.

The district court dismissed the post-mortem publicity claim in 1998 on choice-of-law grounds and later refused to reinstate it, granted summary judgment to the Franklin Mint on the Lanham Act claim, and awarded the company $2,308,000 in attorneys’ fees. The plaintiffs appealed. The central question on the publicity claim was not whether the products would violate California law if it applied, but the threshold issue of whether California’s statute applied to a British decedent at all.

A choice-of-law rule decides the case

The Ninth Circuit treated the post-mortem right of publicity as a form of personal property, consistent with the descendible, transferable nature of the right. California Civil Code section 946 supplies the default choice-of-law rule for personal property: when property has no fixed situs, it is deemed to follow the domicile of its owner. Applying that rule, the court held that the law governing Diana’s post-mortem publicity right was the law of her domicile at death.

After the statute was renumbered in 2000, the legislature added subsection (n), providing that the statute applies to liability, damages, and other remedies arising from acts occurring directly in California. The plaintiffs argued that this reach provision directed California law to apply and moved to reinstate the dismissed claim. The court rejected that reading, holding that section 3344.1(n) “is not a choice of law provision” and that it limited the statute’s reach rather than displacing section 946. With section 946 controlling, the governing law was that of Great Britain, and Great Britain does not recognize a post-mortem right of publicity. Because the foundational right did not exist under the applicable law, the estate’s claim necessarily failed, regardless of how strong California’s protections might have been.

The Lanham Act and nominative fair use

The estate’s federal false-endorsement claim fared no better. To prevail under section 43(a), the plaintiffs had to show a likelihood that consumers would be confused into believing Diana (or her estate) sponsored or endorsed the Franklin Mint’s products. The court analyzed the use as a nominative fair use: the doctrine that allows a defendant to refer to a person or product by name when necessary to describe it, so long as the use does not falsely suggest sponsorship.

Applying the three-part nominative fair use test from New Kids on the Block v. News America Publishing, the court found that the Franklin Mint used no more of Diana’s identity than reasonably necessary to identify the subject of its commemorative products and did nothing to suggest official endorsement. There was no likelihood of confusion about the source of the products. The false-endorsement claim therefore failed, and the court affirmed summary judgment. It also affirmed the substantial fee award against the estate, capping a costly defeat.

Open questions

Which situs rule applies to publicity? Treating publicity as ordinary personal property under section 946 resolved this case, but commentators continue to debate whether identity rights should follow domicile, the place of exploitation, or the forum’s own policy.
Can statutes opt out of section 946? The court read section 3344.1(n) as defining scope rather than choosing law; a more explicit legislative choice-of-law command might produce a different result.
How does this interact with newer state statutes? States have since expanded and varied their post-mortem regimes, leaving open how domicile-based analysis applies when a decedent’s home state grants the right and the forum’s does too.

Implications

Domicile can defeat publicity claims. A celebrity estate cannot borrow California’s strong post-mortem statute if the decedent was domiciled where no such right exists.
Publicity is property for choice-of-law purposes. Classifying the right as personal property pulls in situs rules that may point away from the forum’s law.
Estate planning should consider domicile. Where a public figure is domiciled at death can determine whether valuable post-mortem publicity rights exist at all.
Nominative fair use protects honest reference. Sellers may identify the real subject of commemorative goods by name without implying endorsement, provided they take no more than necessary and avoid suggesting sponsorship.
Aggressive enforcement carries fee risk. A failed publicity and Lanham Act campaign can leave the plaintiff paying the defendant’s substantial attorneys’ fees.

Frequently asked questions

Why did Princess Diana’s estate lose the publicity claim? The Ninth Circuit applied California Civil Code section 946, the default choice-of-law rule for personal property, which points to the law of the decedent’s domicile. Princess Diana was domiciled in Great Britain, which does not recognize a post-mortem right of publicity, so California’s statute did not apply and the claim failed.

What was the Lanham Act false-endorsement claim about? The estate also argued Franklin Mint’s Diana products falsely implied her endorsement. The court found the use was a permissible nominative fair use and that there was no likelihood of confusion about the source of the products, so that claim failed too.

Did the estate have to pay Franklin Mint? Yes. After the estate’s claims failed, the district court awarded Franklin Mint roughly $2.3 million in attorneys’ fees, and the Ninth Circuit affirmed that award. The litigation became a cautionary tale about pursuing cross-border publicity claims.