Over thirty-five years after Bing Crosby’s death, the California Court of Appeal put an end to the continuing battle over the Crooner’s right of publicity.
I Can’t Begin to Tell You
In 1930, Harry Lillis Crosby—nicknamed Bing for his love of a newspaper parody, “The Bingville Bugle”—married first wife, Wilma Wyatt (known professionally as Dixie Lee). The mother of his first four sons, Wilma died in 1952. In her Will, Wilma gave her community property to her two sons, which was held for their benefit in a trust known as the Wilma Wyatt Crosby Trust (the “Wilma Trust”).
Over the next several years, Bing was regularly the topic of gossip as he romanced several of Hollywood’s most beautiful women. In 1957, Bing married Kathryn Grant, a young actress and singer that Bing met on the Paramount lot. Together they had three children and remained married until Bing’s death on October 14, 1977 on a golf course in Madrid.
Bing left the residue of his estate to a trust for the benefit of his wife, Kathryn. Subsequent to Bing’s death, HLC Properties, Limited (“HLC”) was formed for the purpose of managing Bing’s interests, including his right of publicity.
Pennies from Heaven
Under the common law of California, there exists a “right of publicity” in a person’s name, likeness and identity. In 1971, the California Legislature established a statutory right of publicity in a person’s “name, voice, signature, photograph, or likeness.” After a controversial California Supreme Court decision in 2007, the California Legislature clarified that the right of publicity is freely transferable “by means of trust or testamentary documents.”
Nearly twenty years after Bing’s death, the Wilma Trust sued HLC and Kathryn, claiming that it was entitled to “interest, dividends, royalties and other income derived from the community property of [Bing] and [Wilma] . . . .” In 1999, the parties settled the lawsuit for approximately $1.5 million. While the settlement agreement provided that the Wilma Trust would be entitled to its share of any “other income derived from works or performances of Bing Crosby during [his marriage to Wilma] discovered in the future,” the agreement also contained a release of all claims that expressly stated that the parties “hereby compromise, release, acquit and forever discharge one another . . . from all manner of actions, suits, liens, indebtedness, damages, claims, judgments, obligations and demands of every nature, kind or description whatsoever, whether known or unknown and whether suspected or unsuspected, which [the Wilma Trust] has or hereinafter, can, shall or may have against [HLC and Kathryn] directly or indirectly based upon or arising out of any act, duty, agreement, omission, transaction, event, occurrence, or any other matter whatsoever, whether now known or unknown, which occurred prior to the date of this Agreement. Each party is aware of and expressly waives, to the full extent permitted by the law, the benefits of California Civil Code § 1542, which provides as follows: ‘A general release does not extend to claims which the creditor does not known or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.’ ” In light of this settlement agreement, the Wilma Trust dismissed its lawsuit with prejudice.
You’re Getting to be a Habit With Me
When, in 2008, the California Legislature clarified that the right of publicity is transferrable through trust and testamentary documents, it expressly made this right retroactive, including to those deceased personalities who died before January 1, 1985. Losing very little time, Wilma’s estate filed a petition with the court asking for an order stating that Wilma possessed a community property interest in Bing’s right of publicity, and that Wilma’s share of this interest passed to her heirs under to the terms of her Will. Not surprisingly, HLC and Kathryn objected to the petition on the grounds that the 1999 settlement agreement precluded the claim and the right of publicity is not community property.
At the trial court level, the court ruled in favor of Wilma’s estate. The trial court determined that the 1999 settlement agreement did not bar the petition because the 2008 legislation regarding rights of publicity created a right that did not exist before (since it now applied to personalities who died before January 1, 1985). On the community property issue, the trial court applied California’s presumption that property acquired during marriage is community property.
Just One More Chance
In what may or may not be a surprise, the California Court of Appeal reversed the trial court’s judgment. More specifically, the Court of Appeal found that the 2008 legislation regarding rights of publicity did not create a new right. Instead, the appellate court determined that California legislation regarding rights of publicity had always applied to individuals who died before 1985, including at the time the Wilma Trust signed the 1999 settlement agreement. Therefore, the court reasoned, the general release in the 1999 agreement—which applied to all claims, “known or unknown”—was effective against the most recent petition.
Since the Court of Appeal decided the case without needing to address the community property issue, the opinion did not give a detailed analysis as to whether or not rights of publicity are community or separate property. However, the court did drop a footnote in which it “notes” that the right of publicity “appears” to be a separate property asset.
It’s Been a Long, Long Time
The Bing Crosby saga reminds us that the right of publicity can be a very real, very valuable asset. As such, it has the ability—no different than a thriving business or work of art—to instigate post-death litigation that can last years, even decades. Like most assets, careful planning can help moderate the likelihood of protracted litigation. Perhaps more importantly, the Bing Crosby saga highlights how effective a well-drafted general release can be in quashing subsequent litigation.