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Full Opinion
BELA GEORGE LUGOSI et al., Plaintiffs and Appellants,
v.
UNIVERSAL PICTURES, Defendant and Appellant.
Supreme Court of California.
*815 COUNSEL
Irwin O. Spiegel for Plaintiffs and Appellants.
Grossman & Shames and Harvey M. Grossman as Amici Curiae on behalf of Plaintiffs and Appellants.
*816 Robert L. Wilson for Defendant and Appellant.
Rosenfield, Meyer & Susman, H. Mitchell Gould and Jeffrey L. Nagin as Amici Curiae on behalf of Defendant and Appellant.
OPINION
THE COURT.
We granted a hearing in this case in order to consider the important issues raised. After an independent study of these issues, we have concluded that the thoughtful opinion of Presiding Justice Roth for the Court of Appeal, Second Appellate District, in this case correctly treats the issues, and accordingly adopt it as our own. That opinion, with appropriate deletions and additions,[*] is as follows:
In September 1930, Bela Lugosi and Universal Pictures Company, Inc. (Universal)[1] concluded an agreement for the production of the film Dracula in which Lugosi contracted to and did play the title role. Paragraph 4 of the agreement contained a grant of rights set forth in the footnote.[2]
[Plaintiffs] Hope Linninger Lugosi and Bela George Lugosi, widow and surviving son, respectively, of Bela Lugosi, filed a complaint against Universal on February 3, 1966, alleging that they were the heirs of Bela *817 Lugosi (Lugosi) who died in 1956, and that Universal had, commencing in 1960, appropriated and continued to appropriate property which they had inherited from Lugosi and which was not embraced in paragraph 4 of the agreement with Universal. [Plaintiffs] assert that from 1960 until the present time, Universal entered into many licensing agreements which authorized the licensees to use the Count Dracula character. The licensing agreements executed by Universal list the particular movie and the date of the movie in which Lugosi appeared.
The issue as framed by the trial judge is: "[Plaintiffs] seek to recover the profits made by [Universal] in its licensing of the use of the Count Dracula character to commercial firms and to enjoin [Universal] from making any additional grants, without [their] consent.... The action, therefore, raises the question of whether Bela Lugosi had granted to [Universal] in his contracts with [Universal] merchandising rights in his movie portrayal of Count Dracula, the nature of such rights, and whether any such rights, if retained by Bela Lugosi, descended to the [plaintiffs]...."
The trial court found in pertinent part that "the essence of the thing licensed" by Universal to each of its licensees was the "uniquely individual likeness and appearance of Bela Lugosi in the role of Count Dracula." The finding was based upon uncontradicted evidence that it was Lugosi's likeness that was used in the merchandising of Count Dracula notwithstanding the fact that other actors (Christopher Lee, Lon Chaney and John Carradine) appeared in the Dracula role in other Universal films.
The trial court concluded that: Lugosi during his lifetime had a protectable property or proprietary right in his facial characteristics and the individual manner of his likeness and appearance as Count Dracula; that said property or proprietary right was of such character and substance that it did not terminate with Lugosi's death but descended to his heirs; and that [they] acquired all right, title and interest in and to said property under the will of Lugosi.
[Plaintiffs] recovered a judgment for damages and an injunction. Universal appeals.[3]
*818 Bram Stoker's 1897 novel Dracula has always been in the public domain in the United States.[4] Universal's film Dracula, however, was copyrighted after the studio had purchased the motion picture rights from Florence Stoker, Stoker's heir, and from Hamilton Deane and John Balderston, the authors of the 1927 stage play Dracula. (Lugosi had played Count Dracula in the 1927 Deane-Balderston Broadway play.) The trial court found, notwithstanding Universal's copyright in the film, that the character of Count Dracula as described in Stoker's novel is in the public domain in the United States.
Before discussing the applicable law, it should be noted:
There is no allegation in the complaint, no evidence in the record, and no finding of the court that Lugosi in his lifetime alone or with others used his name and/or likeness as Dracula or otherwise in connection with any business, product or service so as to impress a secondary meaning on such business, product or service.
(1) However, Lugosi could have created during his lifetime through the commercial exploitation of his name, face and/or likeness in connection with the operation of any kind of business or the sale of any kind of product or service a general acceptance and good will for such business, product or service among the public, the effect of which would have been to impress such business, product or service with a secondary meaning, protectable under the law of unfair competition. (Johnston v. 20th Century-Fox Film Corp. (1947) 82 Cal. App.2d 796, 810 [187 P.2d 474].) The tie-up of one's name, face and/or likeness with a business, product or service creates a tangible and saleable product in much the same way as property may be created by one who organizes under his name a business to build and/or sell houses according to a fixed plan or who writes a book, paints a picture or creates an invention.[5]
The trial court found, and the parties have extensively briefed and argued, that the interest in question is one of "property" as that term is *819 defined in Civil Code section 654. We agree, however, with Dean Prosser who considers a dispute over this question "pointless." (Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 406.) "Once protected by the law, [the right of a person to the use of his name and likeness] ... is a right of value upon which plaintiff can capitalize by selling licenses." (Italics added; Prosser, Law of Torts (4th ed. 1971) p. 807.)
In brief, Lugosi in his lifetime had a right to create in his name and/or likeness "... a right of value," which could have been transmuted into things of value or Lugosi could, if he elected not to exercise such right, protect it from invasion by others by a suit for injunction and/or damages. However, insofar as the record shows, Lugosi had no occasion in his lifetime to sue or restrain anyone because of a purported invasion of his right to commercially exploit his name and likeness.
(2a) Such "... a right of value" to create a business, product or service of value is embraced in the law of privacy and is protectable during one's lifetime but it does not survive the death of Lugosi. (3) "The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, `to be let alone.' Without any attempt to exact definition, these four torts may be described as follows: [¶] 1. Intrusion upon the plaintiff's seclusion or solitude or into his private affairs. [¶] 2. Public disclosure of embarrassing private facts about the plaintiff. [¶] 3. Publicity which places the plaintiff in a false light in the public eye. [¶] 4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness." (Italics added, Prosser, Privacy, supra, 48 Cal.L.Rev. 383, 389.)[6]
Assuming arguendo that Lugosi, in his lifetime, based upon publicity he received and/or because of the nature of his talent in exploiting his name and likeness in association with the Dracula character, had established a business under the name of Lugosi Horror Pictures and sold *820 licenses to have "Lugosi as Dracula"[7] imprinted on shirts, and in so doing built a large public acceptance and/or good will for such business, product or service, there is little doubt that Lugosi would have created during his lifetime a business or a property wholly apart from the rights he had granted to Universal to exploit his name and likeness in the characterization of the lead role of Count Dracula in the picture Dracula.
However, even on the above assumption, whether Lugosi's heirs would have succeeded to such property depends entirely on how it was managed before Lugosi died. Lugosi may have sold the property and spent the consideration before he died, or sold it for installment payments and/or royalties due after his death, in which latter event such payments and/or royalties would, of course, be a part of his estate.
"There has ... been a good deal of consistency in the rules that have been applied to the four disparate torts under the common name. As to any of the four, it is agreed that the plaintiff's right is a personal one, which does not extend to members of his family, unless, as is obviously possible, their own privacy is invaded along with his. The right is not assignable, and while the cause of action may or may not survive after his death, according to the survival rules of the particular state, there is no common law right of action for a publication concerning one who is already dead." (Italics added, fns. omitted, Prosser, Law of Torts, supra, pp. 814-815.)
[Although, as we discuss hereafter, the right to exploit one's name or likeness may be assignable,] [] a number of decisions support the italicized conclusion.
In Maritote v. Desilu Productions, Inc. (7th Cir.1965) 345 F.2d 418 [18 A.L.R.3d 863] (cert. den. 382 U.S. 883 [15 L.Ed.2d 124, 86 S.Ct. 176], the administratrix of the estate of Al Capone brought an action for unjust enrichment arising out of the defendant's alleged appropriation of the name, likeness and personality of Al Capone. The widow and son of Al Capone brought an action for invasion of their privacy, based on the same appropriation. The plaintiffs argued that the property rights of Al Capone, his name, likeness and personality, did not fall into the public domain upon his death, but passed to his heirs. Defendants *821 argued that the action for unjust enrichment was in essence an action for the invasion of the right of privacy of Al Capone, which could not survive his death. The court agreed with the defendants, holding that the relief sought by the plaintiffs was essentially that of a claimed invasion of a right of privacy, and judgment was entered for the defendants. In support of its position, the court relied upon Dean Prosser's cited article Privacy in 48 Cal.L.Rev. 383.
In Schumann v. Loew's Incorporated (Sup. Ct. 1954) 135 N.Y.S.2d 361, some of the great-grandchildren of composer Robert Schumann brought suit against the defendant for misappropriation of a property right once belonging to the famous composer in the latter's name. Plaintiffs attempted to analogize the property right in a man's name to the right found in real property through citation of cases. In denying recovery to plaintiffs, the court stated: "None of them [cases cited by the plaintiffs] supports plaintiff's contention that a motion picture depicting the life of one who died almost one hundred years earlier is an infringement upon the deceased's property right in his name which descended to his heirs or next of kin." (Schumann v. Loew's Incorporated, supra, at p. 369.)
In James v. Screen Gems, Inc. (1959) 174 Cal. App.2d 650 [344 P.2d 799], the widow of Jesse James, Jr., brought suit against a film producer of a television show portraying the life of her husband. Both the first and second causes of action alleged that there had been "exploitation of plaintiff's deceased husband's personality and name for commercial purposes." (174 Cal. App.2d at p. 651.) The court treated both causes of action as personal to the deceased so that even if there was an invasion of the right of privacy it was not a right that survived death.
(4) When the right invaded was more strictly the privilege "to be let alone," the courts in this state have refused to extend to the heirs of the (potential) plaintiff the right to recover for the invasion of that right: "It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded, that is, plaintiff must plead and prove that his privacy has been invaded. (Coverstone v. Davies (1952) 38 Cal.2d 315, 322-324 [239 P.2d 876]; Werner v. Times-Mirror Co. (1961) 193 Cal. App.2d 111, 116 [14 Cal. Rptr. 208]; James v. Screen Gems, Inc. (1959) 174 Cal. App.2d 650, 653 [344 P.2d 799]; Kelly v. Johnson Publishing Co. (1958) 160 Cal. App.2d 718, 722 [325 P.2d 659]; Metter v. Los Angeles Examiner (1939) 35 Cal. App.2d 304, 310 [95 P.2d 491]; 4 Witkin, Summary of Cal. Law (8th ed.) Torts, § 342, p. 2605.) Further, the *822 right does not survive but dies with the person." (Hendrickson v. California Newspapers, Inc. (1975) 48 Cal. App.3d 59, 62 [121 Cal. Rptr. 429].)
There is good reason for the rule. The very decision to exploit name and likeness is a personal one. It is not at all unlikely that Lugosi and others in his position did not during their respective lifetimes exercise their undoubted right to capitalize upon their personalities, and transfer the value thereof into some commercial venture, for reasons of taste or judgment or because the enterprise to be organized might be too demanding or simply because they did not want to be bothered.
It seems to us rather novel to urge that because one's immediate ancestor did not exploit the flood of publicity and/or other evidence of public acceptance he received in his lifetime for commercial purposes, the opportunity to have done so is property which descends to his heirs. Yet [plaintiffs'] claim boils down to this: now that Bela Lugosi is dead, they are the only ones who should have the opportunity to exploit their ancestor's personality.
If the opportunities of a person to exploit a name or likeness in one's lifetime are inheritable property, may it be assumed that if the first heirs thereof, like their immediate ancestor, do not exploit similar opportunities the right to do so is automatically transferred to succeeding heirs? [May the remote descendants of the historic public figures obtain damages for the unauthorized commercial use of the name or likeness of their distinguished ancestors? If not, where is the line to be drawn, and who should draw it? Assuming that some durational limitation would be appropriate, it has been suggested that the adoption of such a limitation would be "beyond the scope of judicial authority," and that "legislative action will be required...." (Note (1978) 29 Hastings L.J. 751, 774; see Maritote v. Desilu Productions, Inc., supra, 345 F.2d 418, 420.) Certainly the Legislature by appropriate amendment to Civil Code section 3344 (see fn. 6, ante), might recognize a right of action on behalf of the family or immediate heirs of persons such as Lugosi. For the reasons stated above, however, we decline to adopt judicially any such rule.
(2b) Thus, under present law,] upon Lugosi's death anyone, related or unrelated to Lugosi, with the imagination, the enterprise, the energy and the cash could, in [his or her] own name or in a fictitious name, or a trade name coupled with that of Lugosi, have impressed a name so selected *823 with a secondary meaning and realized a profit or loss by so doing depending upon the value of the idea, its acceptance by the public and the management of the enterprise undertaken. After Lugosi's death, his name was in the public domain. Anyone, including [plaintiffs], or either of them, or Universal, could use it for a legitimate commercial purpose.
We are not prepared to say, however, that [plaintiffs] or any person other than Universal could have attempted to build a business with a secondary meaning, which business exploited the name Lugosi, and coupled Lugosi's name with that of Dracula. That question is not before us.
The learned trial judge, in holding that the name and likeness are "property" which can pass to the heirs, relied on a line of cases which purport to recognize such a "property right" as opposed to the right of privacy founded in tort (e.g., Haelan Laboratories v. Topps Chewing Gum (2d Cir.1953) 202 F.2d 866; Uhlaender v. Henricksen (D.Minn. 1970) 316 F. Supp. 1277; Cepeda v. Swift and Company (8th Cir.1969) 415 F.2d 1205.)
The question which these cases pose is this: if the right to exploit name and likeness can be assigned because it is a "property" right (Haelan), is there any reason why the same right cannot pass to the heirs?
(5) Assignment of the right to exploit name and likeness by the "owner" thereof is synonymous with its exercise. In all of the above cases the owner of the right did assign it in his lifetime and, too, Lugosi did precisely this in his lifetime when he assigned his name and likeness to Universal for exploitation in connection with the picture Dracula. (Ante, fn. 2.) Assertion by the heirs of the right to exploit their predecessor's name and likeness to commercial situations he left unexploited simply is not the exercise of that right by the person entitled to it.[8] Thus, whether or not the right sounds in tort or property, and we think *824 with Dean Prosser that a debate over this issue is pointless, what is at stake is the question whether this right is or ought to be personal.
(6) The so-called right of publicity means in essence that the reaction of the public to name and likeness, which may be fortuitous or which may be managed or planned, endows the name and likeness of the person involved with commercially exploitable opportunities. The protection of name and likeness from unwarranted intrusion or exploitation is the heart of the law of privacy.
If rights to the exploitation of artistic or intellectual property never exercised during the lifetime of their creators were to survive their death, neither society's interest in the free dissemination of ideas nor the artist's rights to the fruits of his own labor would be served. Authority, as noted, supports the strong policy considerations which underline the conclusion that the right is personal.
(2c) We hold that the right to exploit name and likeness is personal to the artist and must be exercised, if at all, by him during his lifetime. [End of Court of Appeal opinion.]
The judgment is reversed and the trial court is directed to enter a new judgment in favor of Universal for its costs. Plaintiffs' cross-appeal is dismissed as moot. Universal shall recover its costs of appeal.
MOSK, J.
With the majority of my colleagues I concur in the judgment, and in the opinion of Presiding Justice Roth. Because this is a matter of first impression in our court, I am impelled to add some observations.
Factually and legally this is a remarkable case. Factually: not unlike the horror films that brought him fame, Bela Lugosi rises from the grave 20 years after death to haunt his former employer. Legally: his vehicle is a strained adaptation of a common law cause of action heretofore unknown either in a statute or case law in California.
The plaintiffs, and my dissenting colleagues, erroneously define the fundamental issue, and consistently repeat their misconception. We are not troubled by the nature of Lugosi's right to control the commercial exploitation of his likeness. That right has long been established. (Haelen Laboratories v. Topps Chewing Gum (2d Cir.1953) 202 F.2d 866, 868; Cepeda v. Swift and Company (8th Cir.1969) 415 F.2d 1205, *825 1206; Uhlaender v. Henricksen (D.Minn. 1970) 316 F. Supp. 1277, 1282.) The issue here is the right of Lugosi's successors to control the commercialization of a likeness of a dramatic character i.e., Count Dracula created by a novelist and portrayed for compensation by Lugosi in a film version produced by a motion picture company under license from the successor of the novelist. The error in discerning the problem pervades the trial court's conclusion. Inevitably one who asks the wrong question gets the wrong answer.
Bela Lugosi was a talented actor. But he was an actor, a practitioner of the thespian arts; he was not a playwright, an innovator, a creator or an entrepreneur. As an actor he memorized lines and portrayed roles written for him, albeit with consummate skill. In this instance the part he played was that of Count Dracula, a legendary character out of the novel originated by Bram Stoker,[1] first published in England in 1897, and adapted for the screen by writers employed by Universal Pictures. Due to copyright omission, at all times involved herein the novel and its characters had been in the American public domain.
Merely playing a role under the foregoing circumstances creates no inheritable property right in an actor, absent a contract so providing. Indeed, as the record discloses, many other actors have portrayed the same role, notably Lon Chaney and John Carradine; the first movie was a European version released in 1922 with Max Schreck as the Count. Thus neither Lugosi during his lifetime nor his estate thereafter owned the exclusive right to exploit Count Dracula any more than Gregory Peck possesses or his heirs could possess common law exclusivity to General MacArthur, George C. Scott to General Patton, James Whitmore to Will Rogers and Harry Truman, or Charlton Heston to Moses.
I do not suggest that an actor can never retain a proprietary interest in a characterization. An original creation of a fictional figure played exclusively by its creator may well be protectible. (Goldstein v. California (1973) 412 U.S. 546 [37 L.Ed.2d 163, 93 S.Ct. 2303].) Thus Groucho Marx just being Groucho Marx, with his moustache, cigar, slouch and leer, cannot be exploited by others. Red Skelton's variety of self-devised roles would appear to be protectible, as would the unique *826 personal creations of Abbott and Costello, Laurel and Hardy and others of that genre. Indeed the court in a case brought by the heirs of Stanley Laurel and Oliver Hardy (Price v. Hal Roach Studios, Inc. (S.D.N.Y. 1975) 400 F. Supp. 836) observed at page 845: "we deal here with actors portraying themselves and developing their own characters...."
Here it is clear that Bela Lugosi did not portray himself and did not create Dracula, he merely acted out a popular role that had been garnished with the patina of age, as had innumerable other thespians over the decades. His performance gave him no more claim on Dracula than that of countless actors on Hamlet who have portrayed the Dane in a unique manner.
Unquestionably an inheritable property right can be either created or eliminated by contract. There was an employment contract here giving Universal the right to exploit "any and all of the artist's acts, poses, plays and appearances." Whether the contractual right was intended to be limited to exploitation of the presentation of the photoplay is disputed by the parties. To resolve that conflict and ambiguities in the contract we should turn either to expert testimony concerning custom of the industry none was admitted here or to the law. Fortunately the Legislature has given us guidance.
In the absence of precise provisions of a contract to the contrary, Labor Code section 2860 (formerly Civ. Code, § 1985) must be read into every employment relationship. The statute provides: "Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment."
The foregoing principle has been universally accepted. In Zahler v. Columbia Pictures Corp. (1960) 180 Cal. App.2d 582 [4 Cal. Rptr. 612], the heirs of a musical composer sued for damages when music written under contract to a film studio as a motion picture background was subsequently transferred to and used by a television station. Said the court at page 589: "where an employee creates something as part of his duties under his employment, the thing created is the property of his employer...." Similarly in Treu v. Garrett Corp. (1968) 264 Cal. App.2d 432, 436 [70 Cal. Rptr. 284], an invention created by an employee was held to belong to the employer because that was the very reason he "was hired and paid."
*827 By parity of reasoning, Lugosi, the employee, was hired and paid handsomely, circa 1931 by Universal, the employer, to create a version of Count Dracula in a motion picture. The product of that employment and all the residuals flowing therefrom belong, under the legislative enactment, to the employer. Had the employee desired to withhold any effects of the employment from exploitation by the employer, he could have so provided in the agreement. There is no exclusion in the instant employment contract.
To the same effect is Famous Players-Lasky Corp. v. Ewing (1920) 49 Cal. App. 676 [194 P. 65]. There an electrical device was conceived by the motion picture studio employer, but the originality and unique skill in inventing the actual lights was that of the employee-electrician. The court held that despite the manual dexterity and creative skill of the employee, the product belonged to the employer. Again the analogy is clear to the instant case: Universal as employer conceived the use of Dracula as a motion picture and acquired the rights thereto from the successor of the author; Lugosi as employee was hired to and did apply his creative skill to performing in the film. As in Famous Players-Lasky, the product and all the rights flowing therefrom belong to the employer.
Finally, I must comment briefly on the problems my dissenting colleagues face when they attempt to determine the temporal limitations of their version of the right of publicity. May the descendants of George Washington sue the Secretary of the Treasury for placing his likeness on the dollar bill? May the descendants of Abraham Lincoln obtain damages for the commercial exploitation of his name and likeness by the Lincoln National Life Insurance Company or the Lincoln division of the Ford Motor Company? May the descendants of James and Dolly Madison recover for the commercialization of Dolly Madison confections?
Although conceding it is inherently a policy decision, and without statutory guidance or case authority, the dissent by mere ipse dixit selects the copyright period, i.e., the author's life plus 50 years.
I suggest that if the copyright statute can be adapted to an artistic or literary creation where there is no actual recorded American copyright, then all rights to exploitation of Dracula would have been vested not in Lugosi and his heirs but in the author, Bram Stoker. Parenthically, Stoker retained a copyright protection abroad, and his book did not fall *828 into the public domain in England and in countries adhering to the Berne Convention until April of 1962. This was, of course, long after Lugosi's performances for Universal. While Universal protected itself by contracting in 1930 with Florence Stoker, Bram Stoker's successor, and with the playwrights who adapted the Broadway theatrical version of Dracula, if Lugosi had attempted to exploit Dracula in 1948, 1931, or 1936, he would have been liable in damages to the Stoker estate. The heirs should have no greater rights now than Lugosi would have had in his lifetime.
A salutary tendency today is to encourage the free dissemination of ideas political, literary, artistic even by commercial sources. (See, e.g., Sears, Roebuck & Co. v. Stiffel Co. (1964) 376 U.S. 225, 231 [11 L.Ed.2d 661, 666-667, 84 S.Ct. 784].) If Bela Lugosi were alive today, he would be unable to claim an invasion of his right to privacy for Universal's exploitation not of Lugosi qua Lugosi but of products created in the image of Count Dracula, a role Lugosi played. On a right of privacy theory his successors concededly would be denied the substantial rewards they neither earned nor otherwise deserved two decades after Lugosi's death. To approve such a bonanza on a newly created cause of action, heretofore unknown in California, ill serves the principles of free expression and free enterprise.
I agree with the Court of Appeal that we must reverse the judgment.
BIRD, C.J.
I respectfully dissent.
Although Bela Lugosi died more than 20 years ago, his name still evokes the vivid image of Count Dracula, a role he played on stage and in motion pictures. So impressed in the public's memory, the image of Lugosi as Dracula was profitably marketed by defendant Universal Pictures, which had employed Lugosi to portray Count Dracula in the motion picture Dracula. Specifically, Universal Pictures concluded licensing agreements which authorized the use of Lugosi's likeness in his portrayal of Count Dracula in connection with the sale of numerous commercial merchandising products.
Plaintiffs, beneficiaries under Bela Lugosi's will, commenced this action for damages and an injunction against further licensing of Lugosi's likeness on the ground that such use was unauthorized and infringed on their interest in controlling the commercial use of Lugosi's likeness. This case thus presents the novel question in California of the nature *829 and scope of an individual's interest in controlling the commercial exploitation of his or her likeness. I conclude that Universal Picture's licensing of Lugosi's image was unauthorized and infringed on Lugosi's proprietary interest in his likeness. Since that interest is inheritable, the trial court correctly held that plaintiffs are entitled to damages and injunctive relief.
I. THE FACTS
Bela Lugosi (Lugosi) and defendant, Universal Pictures (Universal), entered into a series of agreements relating to Lugosi's portrayal of the character Count Dracula.[1] Under an employment contract dated September 11, 1930, Lugosi agreed to play the part of Count Dracula in the motion picture Dracula,[2] which was released by Universal in 1931. In connection with the execution of another employment contract in February 1936, Universal obtained Lugosi's written permission to use in the motion picture Dracula's Daughter a wax image of Lugosi's face and head as Count Dracula. This bust was a representation of Lugosi's appearance in Dracula. In 1948, Lugosi again agreed to play Count Dracula in the Universal motion picture Abbott and Costello Meet Frankenstein.[3]
In 1960, four years after Lugosi's death, Universal began to enter into licensing agreements with various businesses for the use of the Count Dracula character in connection with certain commercial merchandising products. By 1966, when this action was filed, Universal had concluded approximately 50 such licensing agreements. The agreements authorized the use of the likeness of Count Dracula in connection with the sale of such products as plastic toy pencil sharpeners, plastic model figures, T-shirts and sweat shirts, card games, soap and detergent products, picture puzzles, candy dispensers, masks, kites, belts and belt buckles, and beverage stirring rods.
*830 The licenses granted by Universal specifically authorized the use of Lugosi's likeness from his portrayal of Count Dracula in Dracula and Dracula's Daughter. No agreement made reference to any other actor's portrayal of Count Dracula. Nearly all of these agreements also granted merchandising rights in other horror film characters.[4] The agreements provided that Universal had the right to license the commercial use of the names, characteristics, and images of all these characters. However, the licensee was precluded from using the name of the actor who played each character in its commercial activities.
Plaintiffs, Lugosi's surviving son and widow, learned of the commercial use of Lugosi's likeness in his portrayal of Count Dracula in April 1963. They filed suit in August 1963 seeking damages and injunctive relief on the ground that licensing his likeness was unauthorized and infringed on a valuable property right, the commercial value of Lugosi's likeness. Universal moved to dismiss the complaint on the ground that Lugosi's estate was the proper plaintiff. Plaintiffs were subsequently granted a voluntary dismissal without prejudice so that Lugosi's estate could be reopened to determine the distribution of property not considered in the earlier decree of distribution. In 1966, after plaintiffs had been awarded all causes of action belonging to the estate, the present action was filed.
The trial court concluded that the essence of Lugosi's portrayal of Count Dracula was found in his "facial characteristics and in the uniquely individual manner of his likeness and appearance." The court further found that Universal had not granted its licensees the right to use a likeness of a Count Dracula character generally consistent with the character described in the novel Dracula. Rather, Universal had licensed the "uniquely individual likeness and appearance" of Lugosi in his portrayal of Count Dracula.
The trial court held that Universal had no contractual right to license such use. A grant-of-rights provision in the 1930 contract was interpreted to authorize Universal to photograph and record Lugosi's portrayal of Count Dracula in Dracula, to distribute the resulting motion picture, and to publicize Lugosi's name, likeness, acts and appearances in connection with advertising the motion picture. (See post, fn. 37.) However, Universal's commercial licensing agreements were found to *831 have been completely separate and apart from any advertising concerning the re-release of Dracula to movie theaters or its broadcast on television. Further, the trial court concluded that Lugosi did not otherwise grant to Universal the right to exploit his portrayal of Count Dracula in connection with the sale of commercial products.[5]
Lugosi was found to have a protectible proprietary interest in the commercial use of his likeness and appearance, independent of the protection afforded by the common law right of privacy. This protection extended to Lugosi's likeness in his distinctive portrayal of Count Dracula. This proprietary right did not terminate upon Lugosi's death but descended to his beneficiaries, plaintiffs. Since neither Lugosi nor plaintiffs had authorized Universal to license the use of Lugosi's likeness in his portrayal of Count Dracula, such use constituted a tortious interference with plaintiffs' interests, entitling plaintiffs to recover damages.
The trial court found that the applicable statute of limitations for the appropriation of a protectable proprietary interest was two years (Code Civ. Proc., § 339, subd. 1), and that each license, and each renewal or extension thereof, constituted a separate tort. Therefore, plaintiffs were entitled to damages for each license agreement or renewal thereof executed or commenced within two years of the filing of this action on February 3, 1966.[6] The initiation of the present action, rather than the filing of plaintiffs' suit in August 1963, was found to be the critical date for measuring the recovery period since the present action was not considered a continuation of the 1963 lawsuit.
In connection with the approximately 35 licensing agreements for which recovery was not barred by the statute of limitations, Universal received more than $260,000 in royalties. After considering detailed evidence on the proportion of that amount which resulted from licensing the use of Lugosi's likeness as compared to other characters and on the extent of Universal's expenses, the trial court awarded plaintiffs $53,023.23 in damages. Plaintiffs were also awarded prejudgment interest on this amount from January 1, 1969, the "mid-point of defendant's *832 infringement." (See Civ. Code, § 3288.) The court further permanently enjoined Universal and its affiliated and/or related corporations from making or entering into any contract or license agreement which grants, authorizes, permits or licenses the use of Lugosi's name, likeness or appearance in his portrayal of Count Dracula in connection with the sale or advertisement of any commercial merchandising product. The injunction does not apply to either the exhibition of the motion pictures produced by Universal in which Lugosi appeared as Count Dracula or to the dissemination or broadcast of any biographical information about Lugosi.[7]
Universal appeals from this judgment, presenting a multifaceted attack on the trial court's findings. Plaintiffs cross-appeal, asserting that the present action should be considered a continuation of the lawsuit filed in 1963 for purposes of calculating the effect of the statute of limitations.
II. THE RIGHT OF PUBLICITY
The fundamental issue in this case is the nature of Lugosi's right to control the commercial exploitation of his likeness. The trial court found Universal's licensing agreements constituted a tortious interference with Lugosi's proprietary or property interest in the commercial *833 use of his likeness, an interest which had descended to plaintiffs. Universal asserts that Lugosi's interest is protected only under the rubric of the right of privacy. Since that right is personal and ceased with Lugosi's death, plaintiffs cannot recover damages based on Universal's conduct.[8] Acordingly, the critical question is whether an individual's interest in the commercial use of his likeness is protected solely as an aspect of the right of privacy or whether additional or alternative protection exists.
A. PRIVACY OR PUBLICITY
The common law right of privacy creates a cause of action for "an interference with the right of the plaintiff ... `to be let alone.'" (Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 389.)[9] "The gist of the cause of action in a privacy case is ... a direct wrong of a personal character resulting in injury to the feelings ... of the individual.... The injury is mental and subjective. It impairs the mental peace and comfort of the person and may cause suffering much more acute than that caused by a bodily injury." (Fairfield v. American Photocopy Equipment Co. (1955) 138 Cal. App.2d 82, 86-87 [291 P.2d 194]. See Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 276-278 [239 P.2d 630]; Hofstadter & Horowitz, The Right of Privacy (1964) § 1.1; Warren & Brandeis, The Right to Privacy (1890) 4 Harv.L.Rev. 193.) Since the right of privacy developed to protect an individual from certain injuries to his feelings and assaults on his peace of mind, he need not suffer any injury to his property, business or economic interests as a prerequisite to initiating a suit for an invasion of privacy. (Fairfield v. American Photocopy Equipment Co., supra,