                                 IN THE
              ARIZONA COURT OF APPEALS
                              DIVISION ONE


                      In the Matter of the Estate of:

               LOIS CATHERINE REYNOLDS, Deceased.
                  _________________________________
                    SYLVIA REYNOLDS, as Personal
                     Representative of the Estate of
              Lois Catherine Reynolds, Petitioner/Appellant,

                                    v.

                ROBIN REYNOLDS, Respondent/Appellee.

                          No. 1 CA-CV 13-0274
                           FILED 04/24/2014


          Appeal from the Superior Court in Maricopa County
                         No. PB2011-000192
          The Honorable Geoffrey H. Fish, Judge Pro Tempore

                               AFFIRMED


                               COUNSEL

Fennemore Craig, PC, Phoenix
By Timothy J. Berg, Ray K. Harris, Jacob J. Cranston
Counsel for Petitioner/Appellant

Jaburg & Wilk, PC, Phoenix
By Lauren L. Garner, Maria Crimi Speth
Counsel for Respondent/Appellee
                         REYNOLDS v. REYNOLDS
                           Opinion of the Court



                                  OPINION

Chief Judge Diane M. Johnsen authored the opinion of the Court, in which
Acting Presiding Judge Patricia K. Norris and Judge Maurice Portley
joined.


J O H N S E N, Judge:

¶1            Robin Reynolds wrote two online commentaries about her
mother Lois, one describing her own reaction to her elderly mother's
diminished quality of life, and the other, a fond Mother's Day
remembrance after her mother had died. Robin's sister, Sylvia, personal
representative of their mother's estate, objected to Robin's writings and
listed a claim against Robin for violation of Lois's right of publicity on her
inventory of the assets of the estate. After Robin protested, the superior
court disallowed the claim, ruling the estate had "no Right of Publicity."

¶2             We hold that a right of publicity exists under Arizona law
and that it may be enforced by one's estate after death. We affirm the
superior court's order, however, because we conclude that, as a matter of
law, Robin's commentaries do not give rise to a claim for a violation of
Lois's right of publicity.

                 FACTS AND PROCEDURAL HISTORY

¶3            Robin's article for an online magazine in August 2010 was
titled "I Want to Die Like a Dog: Poignant Insights on Aging Gracefully." In it,
Robin described her aging mother's daily challenges with independent
living. Robin wrote that although her mother claimed she did not want to
burden her children, she had made no care plans for herself and as a
result, called on Robin for help with all manner of problems. Robin
observed that "[r]egardless of the magnitude of [her mother’s] mishaps, I
am expected to respond promptly with little regard for how stressful these
episodes" were for Robin and her family. Robin concluded that she had
resolved not to leave these "agonizing decisions" to her own child. She
closed by saying she wished to age gracefully and "die like [her] dog," "not
expecting anything, but happy and grateful for every kindness" she
received.




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                        REYNOLDS v. REYNOLDS
                          Opinion of the Court

¶4            Lois passed away in January 2011. In her will, she named as
heirs her children – Robin, Sylvia and their brother, Doug. In April 2011,
Doug wrote to Robin saying he and Sylvia were "shocked, hurt and
deeply angry" to discover Robin's online account about their mother. He
demanded Robin remove the commentary and promise to refrain from
writing anything else about their family "either in non-fiction or 'fictional
form.'" Shortly thereafter, through counsel and as personal representative,
Sylvia asked Robin to sign an agreement to refrain from making any
“[p]ublication actually or reasonably perceived to be about or relating to
Lois (including without limitation Lois's name, likeness and description . .
.).” Robin refused to sign the agreement, and on Mother's Day a few
weeks later, posted a blog tribute to Lois that included a photograph of
herself with her mother.

¶5            When Sylvia issued an inventory of the estate, it included an
entry labeled "Estate claim against Robin Reynolds [] for Right of Publicity
in the name of Lois Catherine Reynolds." Robin filed a petition to compel
closure of the estate, arguing it could not assert any purported right of
publicity on behalf of Lois. After briefing, the superior court ruled the
estate had no claim against Robin.

¶6           The estate timely appealed. This court has jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona
Revised Statutes ("A.R.S.") section 12-2101(B) (2014). 1

                               DISCUSSION

             A.    The Right of Publicity: General Principles.

¶7           Violation of the right of publicity, also termed
"appropriation," originally was one of the four varieties of invasion of
privacy. See Restatement (Second) of Torts §§ 652A, 652C (1977); William
L. Prosser, Privacy, 48 Cal. L. Rev. 383, 389 (1960). 2 Arizona long has


1     Absent material revision after the relevant date, we cite a statute's
current version.

2      Whether a right of publicity exists in Arizona is a question of law
that we review de novo. See Calisi v. Unified Financial Servs., LLC, 232 Ariz.
103, 106, ¶ 13, 302 P.3d 628, 631 (App. 2013). "Thus we are not constrained
by the legal conclusions . . . of the [superior] court." Enterprise Leasing Co.
of Phoenix v. Ehmke, 197 Ariz. 144, 148, ¶ 11, 3 P.3d 1064, 1068 (App. 1999).



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                           Opinion of the Court

recognized a common-law right of privacy, see Reed v. Real Detective Publ'g
Co., 63 Ariz. 294, 305, 162 P.2d 133, 138 (1945), allowing claims based on
each of the three other forms of invasion of privacy. See id. (publication of
private facts); Hart v. Seven Resorts Inc., 190 Ariz. 272, 279, 947 P.2d 846,
853 (App. 1997) (intrusion upon seclusion); Godbehere v. Phoenix
Newspapers, Inc., 162 Ariz. 335, 342, 783 P.2d 781, 788 (1989) (false light).

¶8            The "right of publicity" at issue here is defined by the
Restatement (Third) of Unfair Competition ("Restatement Third") § 46
(1995) as the right to the "commercial value of a person's identity." Under
this provision, "[o]ne who appropriates the commercial value of a person's
identity by using without consent the person's name, likeness, or other
indicia of identity for purposes of trade is subject to liability" for resulting
damages. Id. As the Restatement Third explains:

       Like the right of privacy, the right of publicity protects an
       individual's interest in personal dignity and autonomy.
       With its emphasis on commercial interests, the right of
       publicity also secures for plaintiffs the commercial value of
       their fame and prevents the unjust enrichment of others
       seeking to appropriate that value for themselves. The right
       to prohibit unauthorized commercial exploitation of one's
       identity allows a person to prevent harmful or excessive
       commercial use that may dilute the value of the identity.
       Although proof of deception or confusion is not an element
       of liability under this Section, the right of publicity indirectly
       affords protection against false suggestions of endorsement
       or sponsorship.

Id. cmt. c.

¶9             One of the earliest cases acknowledging the right of
publicity was Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562
(1977). The plaintiff was an entertainer with "a 'human cannonball' act in
which he is shot from a cannon into a net some 200 feet away." Id. at 563.
He sued a television station that recorded his 15-second act at a fair and
broadcast it in its entirety without his consent. Id. at 564. Acknowledging
the plaintiff's right under state law to the "professional property" of his
act, the Supreme Court held the television station had no First
Amendment right to appropriate the act by broadcasting it without his
consent. Id. at 575-77. Key to the Court's decision was that the television
station effectively had stolen the commercial value of the plaintiff's act:




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                        REYNOLDS v. REYNOLDS
                          Opinion of the Court

       If under this standard respondent had merely reported that
       petitioner was performing at the fair and described or
       commented on his act, with or without showing his picture
       on television, we would have a very different case. But
       petitioner is not contending that his appearance at the fair
       and his performance could not be reported by the press as
       newsworthy items. His complaint is that respondent filmed
       his entire act and displayed that film on television for the
       public to see and enjoy.

Id. at 569.

¶10            Rooted in recognition of the commercial value of an
individual's name or likeness, the right of publicity is in the nature of a
property right. Restatement Third § 46 cmt. g. Accordingly, the tort of
appropriation affords redress of commercial injuries, by contrast to
personal injuries of the sort remedied by a claim for, e.g., invasion of
privacy by intrusion or publication of private facts. Id. cmt. a; see Haelan
Labs. Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953)
(distinguishing personal right of privacy, which might give rise to a claim
for personal injuries for hurt feelings caused by publication of one's
picture, from that person's "right in the publicity value of his photograph,
i.e., the right to grant the exclusive privilege of publishing his picture");
Uhlaender v. Henricksen, 316 F. Supp. 1277, 1280 (D. Minn. 1970) (by
contrast to the three other traditional forms of invasion of privacy, a claim
for appropriation generally considered to involve a pecuniary loss, an
interference with property).

¶11            The right of publicity "is most often invoked to protect the
value associated with the identity of a celebrity." Restatement Third § 46
cmt. d.      Indeed, appropriation claims typically arise out of the
unauthorized use of a well-known person’s name or likeness in
connection with the advertising of goods or services. See, e.g., Carson v.
Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983); Palmer v.
Schonhorn Enters., Inc., 232 A.2d 458 (N.J. Super. Ct. Ch. Div. 1967); State ex
rel. Elvis Presley Int'l Mem'l Found. v. Crowell, 733 S.W. 2d 89, 97 (Tenn.
App. 1987). But "the identity of even an unknown person may possess
commercial value." Restatement Third § 46, cmt. d ("evaluation of the
relative fame of the plaintiff is more properly relevant to the
determination of appropriate relief"). See Cont'l Optical Co. v. Reed, 86
N.E.2d 306, 310 (Ind. App. 1949) (claim brought by Army optician);
Canessa v. J.I. Kislak, Inc., 235 A.2d 62, 75 (N.J. Super. 1967) (family
searching for home to rent).


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                        REYNOLDS v. REYNOLDS
                          Opinion of the Court

¶12           In the absence of Arizona law to the contrary, we generally
follow the Restatement. Espinoza v. Schulenburg, 212 Ariz. 215, 217, ¶ 9,
129 P.3d 937, 939 (2006). We see no reason to depart from the Restatement
Third in this matter, and therefore hold that an individual has a right of
publicity that protects his or her name and/or likeness from appropriation
for commercial or trade purposes.

             B.   Violation of a Decedent's Right of Publicity.

¶13           Citing A.R.S. § 14-3110 (2014), Robin argues a claim for
violation of an individual's right of publicity does not survive the
individual's death. In relevant part, the statute states, "Every cause of
action, except a cause of action for damages for breach of promise to
marry, seduction, libel, slander, separate maintenance, alimony, loss of
consortium or invasion of the right of privacy, shall survive the death of
the person" entitled to relief. A.R.S. § 14-3110. Robin argues the statute
bars the estate's claim for violation of the right of publicity because the
tort originated as a variety of invasion of privacy.

¶14           To determine whether § 14-3110's reference to an action for
"invasion of the right of privacy" encompasses a claim for violation of the
right of publicity, we first look to the language of the statute itself. When
the language of a statute is clear and unambiguous, we give effect to its
plain language. Bilke v. State, 206 Ariz. 462, 464, ¶ 11, 80 P.3d 269, 271
(2003).

¶15           On its face, § 14-3110 does not refer to a claim for violation of
the right of publicity. The omission is logical: The statute excepts from the
general rule of survival only a handful of deeply personal claims, and, as
we have stated, the right of publicity is more akin to a property right, the
breach of which is measured by resulting pecuniary loss, than a personal
right whose violation results in emotional injury. See Toffoloni v. LFP
Publ'g Group, LLC, 572 F.3d 1201, 1205 (11th Cir. 2009) (right of publicity is
"characterized by an economic concern that individuals be allowed to
control the use of their image in order to maximize the profit they can
receive from its publication"); Cardtoons, L.C. v. Major League Baseball
Players Ass'n, 95 F.3d 959, 967 (10th Cir. 1996) ("right of publicity involves
a cognizable property interest"); Ventura v. Titan Sports, Inc., 65 F.3d 725,
730 (8th Cir. 1995) ("[T]he right of publicity differs substantially from the
right to privacy . . . . The right to publicity protects pecuniary, not
emotional, interests."); Carson, 698 F.2d at 838 ("[T]he right of publicity
vindicates the economic interests of celebrities, enabling those whose
achievements have imbued their identities with pecuniary value to profit


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                         REYNOLDS v. REYNOLDS
                           Opinion of the Court

from their fame.") (citations omitted); J. Thomas McCarthy, The Rights of
Publicity and Privacy § 1:7 (2d ed. 2013) (right of publicity is a property
right whose origin is in unfair competition, intellectual property and tort
law.).

¶16           On the other hand, the exception afforded by § 14-3110 to
claims for invasion of privacy from the general rule of survival is
consistent with the principle that, as a personal action, a claim for invasion
of privacy may be asserted only by the individual whose privacy has been
infringed. As the Restatement (Second) of Torts states,

       The right protected by the action for invasion of privacy is a
       personal right, peculiar to the individual whose privacy is
       invaded. The cause of action is not assignable, and it cannot
       be maintained by other persons such as members of the
       individual's family, unless their own privacy is invaded
       along with his.

Restatement (Second) of Torts § 652 cmt. a (1977).

¶17             But even when appropriation, or violation of the right of
publicity, was treated as a variety of invasion of privacy, the Restatement
(Second) of Torts expressly allowed such a claim to survive the death of
the holder. See Restatement (Second) of Torts § 652(I) cmt. a ("The only
exception to this rule [that a claim does not survive the holder's death]
involves the appropriation to the defendant's own use of another's name
or likeness.").

¶18           Accordingly, we conclude § 14-3110 does not except from
the general rule of survival a cause of action for violation of an
individual's right of publicity. For that reason, a claim arising from
Robin's original online commentary, published while Lois was living, may
survive her mother's death.

¶19            The estate also asserts that Robin's Mother's Day post, which
was published after Lois's death, violated her right of publicity. Robin
contends the right of publicity is not descendible, so that the estate may
not assert a claim that arose after Lois's death.

¶20            As a property right, however, the right of publicity is "freely
assignable," and an assignment "transfers ownership to the assignee, who
has standing to assert the right against others." Restatement Third § 46
cmt. g; see Bi-Rite Enters., Inc. v. Bruce Miner Co., Inc., 757 F.2d 440, 442 (1st
Cir. 1985) ("As a commercial, rather than a personal right, [the right of


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                         REYNOLDS v. REYNOLDS
                           Opinion of the Court

publicity] is fully assignable."). Consistent with that principle, we hold
the right of publicity is descendible, and therefore may be enforced by a
decedent's estate. Restatement Third § 46 cmt. h (majority of jurisdictions
hold right of publicity is descendible, although "scope of permissible use
by others may be greater in the case of post mortem publicity rights"). See,
e.g., Hebrew Univ. of Jerusalem v. General Motors LLC, 878 F. Supp. 2d 1021,
1031 (C.D. Cal. 2012); Martin Luther King, Jr., Ctr. for Soc. Change, Inc. v.
Am. Heritage Products, Inc., 296 S.E.2d 697, 705 (Ga. 1982); Elvis Presley Int'l
Mem'l Found., 733 S.W.2d at 97-98 (listing cases).

¶21           Robin argues a postmortem right of publicity should exist
only if the decedent exploited such a right during his or her lifetime. The
Restatement rule is to the contrary. Restatement Third § 46 cmt. h
("Although commercial exploitation prior to death can be relevant in
establishing the value of the appropriated identity, it should not be
required as a condition of descent."); see J. Thomas McCarthy, The Rights of
Publicity and Privacy § 9:17 ("The overwhelming majority rule under either
statute or common law is that the right of publicity is descendible
property and has a postmortem duration which is not conditioned on
lifetime exploitation."). 3

¶22           For these reasons, we hold an estate's right to assert the
decedent's right of publicity is not conditioned on exploitation of the right
during the decedent's life.

C.     The Commentaries Do Not Violate the Estate's Right of Publicity.

¶23           Finally, Robin argues that even if the right of publicity is
descendible, the estate has no valid claim because her commentaries were
expressive works squarely exempted from liability under the Restatement
Third § 47.


3       Although some courts condition the descendibility of the right of
publicity on exploitation of the right during the decedent's life, see, e.g.,
Sinkler v. Goldsmith, 623 F. Supp. 727, 733-34 (D. Ariz. 1985); Hicks v.
Casablanca Records, 464 F. Supp. 426, 429 (S.D.N.Y. 1978); Nature's Way
Products, Inc. v. Nature-Pharma, Inc., 736 F. Supp. 245, 252 (D. Utah 1990);
Lugosi v. Universal Pictures, 603 P.2d 425, 431 (Cal. 1979); those cases lack
analysis of that issue and are not persuasive. See 2 J. Thomas McCarthy,
The Rights of Publicity and Privacy § 9:14 ("it seems apparent that the
'lifetime exploitation' requirement appeared out of nowhere in the case
law and was parroted by courts thereafter").



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                        REYNOLDS v. REYNOLDS
                          Opinion of the Court

¶24           The Restatement Third § 46 provides a cause of action
against one who appropriates the commercial value of a person's identity
"for purposes of trade," meaning, for example, "in advertising the user's
goods or services." Id. § 47. Under this rule, "use 'for purposes of trade'
does not ordinarily include the use of a person's identity in news
reporting, commentary, entertainment, works of fiction or nonfiction, or in
advertising that is incidental to such uses." Id. Sylvia and Doug object to
Robin's writings because they disclose personal details about their mother.
Viewed in that fashion, however, the commentaries are on the order of an
unauthorized biography, which plainly may not give rise to a claim for
violation of the right of publicity. See, e.g., Matthews v. Wozencraft, 15 F.3d
432, 439 (5th Cir. 1994); Uhlaender, 316 F. Supp. at 1282; Frosch v. Grosset &
Dunlap, Inc., 75 A.D.2d 768, 768-69 (N.Y. App. Div. 1980) (sensationalized
biographical account of the life of Marilyn Monroe); see also Montgomery v.
Montgomery, 60 S.W.3d 524, 526, 528 (Ky. 2001) (son's use of deceased
father's image in music video not actionable).

¶25            The estate further argues that because Robin published her
commentaries for a financial benefit, they constitute the unauthorized use
of Lois’s name or likeness for commercial purposes. We conclude
otherwise. The Restatement Third § 47 makes clear that the mere sale of
an expressive work that uses one's likeness or name does not constitute
use of the other's identity "for purposes of trade" as required to give rise to
a claim for relief. Id. at cmt. c ("The fact that the publisher or other user
seeks or is successful in obtaining a commercial advantage from an
otherwise permitted use of another's identity does not render the
appropriation actionable."). Indeed, all of the activities excepted from the
definition of "for purposes of trade" are conducted, at least in part, for
financial gain: News reporting, entertainment and works of fiction or
nonfiction. Id.; see also Ann-Margaret v. High Soc'y Magazine, Inc., 498 F.
Supp. 401, 406 (S.D.N.Y. 1980) (use of plaintiff's image in a magazine
article "published and sold for profit" was not actionable); Rosemont
Enters., Inc. v. Random House, Inc., 294 N.Y.S.2d 122, 128-29 (N.Y. Sup. Ct.
1968) (use of Agatha Christie's name and likeness in fictionalized
biography did not violate right of publicity even though publisher sought
to profit from book sales). 4



4     The estate argues Robin published her on-line commentaries on a
website generally devoted to promoting a book Robin had written about
her dog. The commentaries, however, contained Robin's personal



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                        REYNOLDS v. REYNOLDS
                          Opinion of the Court

                              CONCLUSION

¶26            We hold that Arizona recognizes a right of publicity. The
right is descendible, and a claim for violation of the right survives the
death of the holder. It is not limited to celebrities and it need not be
exploited during life to be asserted in death. We affirm the superior
court's ruling, however; as a matter of law, Robin’s commentaries do not
give rise to a claim for relief because they are expressive works that do not
employ Lois’s name or likeness for purposes of trade. See Hale v.
Amphitheater Sch. Dist. No. 10, 192 Ariz. 111, 114, ¶ 5, 961 P.2d 1059, 1062
(App. 1998) (court of appeals may affirm superior court's ruling if correct
for any reason).




                            :gsh




reflections about her mother and thoughts about aging; neither concerned
the book about her dog.



                                     10
