The Juice Squeezed? Fred Goldman Sues for O.J. Simpson’s Publicity Rights
Media Law Bulletin
Nearly 11 years after the infamous double-murder trial, Fred Goldman, father of the late Ronald Goldman, is still looking for a way to make O.J. Simpson pay.
Goldman opened a new chapter in the “Trial of the (last) Century” when he filed a petition in Los Angeles County Superior Court in which he seeks ownership and control over Simpson’s right of publicity.1 If granted, it would mean that every time there is a commercial use of Simpson’s name, likeness or image, the earnings would go to the Goldman family.
Simpson was acquitted in the slayings of Ronald Goldman and Nicole Brown Simpson in 1995. The Goldman and Brown families later sued Simpson for wrongful death, and in 1997, a civil court jury, applying a lesser standard of proof than is required at a criminal trial, found Simpson liable for the killings. Simpson was ordered to pay nearly $20 million2 for the wrongful death of Ronald Goldman. However, Simpson to date has never paid any amount toward satisfying that judgment. In the motion, Goldman cites the fact that Simpson continues to earn revenue through offbeat appearances, such as at autograph signings at last year’s NecroComicon, a Halloween-themed comic book convention.3
Goldman, frustrated that Simpson has not paid any part of the judgment but apparently continues to enjoy sun and fun in Florida, is now pursuing an alternative means to secure the remedy that, according to Goldman, Simpson has publicly vowed he would never pay.4 The motion requests that the court transfer Simpson’s right of publicity to Goldman in an efforts to satisfy Simpson’s unpaid judgment. Goldman asserts that the right of publicity is a commercial intellectual property right that is freely assignable and transferable, and that it applies to the use of a person’s name, image or likeness in advertising, merchandise, and commercial endeavors such as autograph signings and appearances.
Untried Legal Maneuver
Goldman’s novel legal move reportedly was inspired by an intellectual property consultant based in Indiana, which arguably has the most sweeping right-of-publicity statute in the nation.5 Indiana provides for a right of publicity that is freely transferable and descendible and that survives 100 years after the death of the person. In contrast, California’s right survives 70 years after death.
But not even in Indiana may publicity rights be transferred by judicial order. To the contrary, the Indiana statute provides for transfer of the publicity right only through contract license, gift, trust, testamentary document or the laws of intestate succession.6
While publicity rights have been sold or transferred, the petition to forcibly take them to satisfy a lawsuit award is an untried legal maneuver. Individuals in California can control the commercial exploitation of their image. Specifically, under California law, “every person has a proprietary interest in his [or her] own identity.”7 California law prohibits the unauthorized use of another’s “name, voice, signature, photographs, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.”8
California courts have stressed that the statutory right of publicity is designed “to prevent others from misappropriating the economic value generated by [a person’s] fame through the merchandising of [his or her] ‘name, voice, signature, photograph or likeness.’”9
Is the Fight Worth It?
Simpson has a $4 million pension from the NFL, which pays him $25,000 a month.10 However, Goldman has not been able to satisfy the judgment against the pension because pensions,like IRAs, are protected against most judgments.11 Based upon public records, Simpson has an estate in Florida, which he purchased in 2000 for $575,000. The estate, which is now estimated to be worth $1.3 million12, is protected under Florida’s Homestead Act, which protects an estate of any value against most judgments. Florida’s homestead exemption provision is one of the most protective in the United States, giving no limit to the value of property that can be protected from creditors. This provision is written into the Florida Constitution.13
Simpson’s attorney, Yale Galanter, has denied that Simpson had avoided paying the lawsuit award. “It’s not a question of intentionally trying to avoid anything,” he is reported as saying. “O.J.’s life is very simply an open book. There is no money.” He estimated that Simpson makes only a few thousand dollars from autograph-signing sessions.14
Simpson appears, however, to generate substantial revenue from his public appearances and sales of autographed memorabilia. According to Goldman’s motion, at the National Sports Collectors Convention excited fans “crowded” Simpson, buying 115 autographs at $100 and $125 each during Simpson’s 75 minutes at the event.15 Simpson also participated in a reality-based television project titled “Juiced,” where he attempted to play practical jokes on unsuspecting victims.16 Goldman has alleged in court papers that Simpson has redirected payments from his appearances and autographs signings to other family members, allowing him to claim that he has not made any money from such activities.
But despite Simpson’s own ability to market himself, it is unknown what the actual value of Simpson’s publicity rights would be if held by a third party. Further, it is questionable whether advertisers and merchandise companies would want to associate with campaigns or products featuring Simpson.
Personality … Plus
Unlike a patent, which, according to Goldman’s lawyers, may be seized to settle judgments, the right of publicity is a personal right. The inherent quality of the publicity right is different from other intellectual property rights. There is a great potential for abuse if this right is held by a third party for any use. This is a concern not typically present when a patent is seized. And in this case, Simpson’s publicity rights would not be assigned to a neutral third party but to someone who believes that Simpson murdered his son and who reportedly said that “any pain and aggravation that I can cause (Simpson) is just wonderful.”17 If Goldman’s motion is granted, it will be interesting to see how Goldman wields his newfound power.
A hearing on Goldman’s motion is set for October 17, 2006.
1 According to court documents, Goldman is represented by Jonathan Polak, director and chair of the intellectual property group at Indianapolis-based Sommer Barnard PC, and Peter Haven of the Los Angeles-based firm Musick, Peeler & Garrett LLP.
2 The actual verdict was $33.5 million, but this amount is the Goldman family’s portion of the award.
3 Motion by Plaintiff Frederic Goldman for Order Transferring and Assigning Right of Publicity for Defendant and Judgment Debtor Orenthal James Simpson, p.8, lines 21-28, filed in Frederic Goldman et al. v. Orenthal James Simpson, Los Angeles Superior Court Case Number SC 036340. Goldman also notes that the NecroComicon appearance fell on the anniversary of Simpson’s acquittal from the criminal charges. Id.
4 Quote by Fred Goldman on Larry King interview on CNN Larry King Live, aired June 19, 2004.
5 Indiana is also the home of CMG Worldwide, which controls the publicity rights of many legendary dead celebrities, such as Marilyn Monroe, James Dean, Ingrid Bergman and Babe Ruth.
6 Indiana Code Section 32-13-1-16.
7 Lugosi v. Universal Pictures, 25 Cal.3d 813 (1979) (“The protection of name and likeness from unwarranted intrusion or exploitation is the heart of the law of privacy.”)
8 Cal. Civ. Code §3344. Under §3344.1(b), the right of publicity is “freely transferable, in whole or in part, by contract or by means of trust or testamentary documents.”
9 Comdey III Prods. Inc. v. Gary Saderup Inc., 25 Cal.4th 387 (2001).
10 “Goldman Seeks Control of O.J.’s Right to Publicity,” Handle on the Law.com, Tuesday, September 5, 2006.
12 Zillow.com search performed on September 21, 2006.
13 Article X, section 4.
14 “Ron Goldman’s Dad Asks for Rights to O.J. Simpson’s Image to Pay Off Judgment,” Foxnews.com, September 5, 2006.
15 Motion, Exhibit “C.” Simpson is said to have “signed hundreds of autographs at a nearby hotel, while the convention promoter “was charging $95 for photos and T-shirts signed by Simpson, and $125 for autographed football jerseys and helmets.” Motion, Exhibit “B.”
16 Motion, Exhibit “C.” Goldman notes that some jokes used “props” relating to evidence presented during the Brown/Goldman murder trial, which he and his family find particularly offensive. (Motion, p.29, lines 24-25.)
17 “Even O.J. Simpson Should Keep His Publicity Rights,” Los Angeles Daily Journal, September 13, 2006, p.8.