Plaintiffs in this case are the heirs and assignees of three Marx brothers, Groucho, Chico, and Harpo. They brought this action alleging that defendants appropriated the right of publicity in their names by producing a musical play. The court discusses two main issues in this case. First, does the right to publicity exist under New York law? Second, after establishing that the right to publicity did in fact exist, did it descend to the heirs and assignees of the Marx brothers in this case?
In discussing the first issue, the court mentions that this right does not exist under any New York statute and must therefore be based on common law. In examining case law, the court noted that while several federal courts (interpreting New York state law) found such a right exists, no state court had done so. This court decided that such a right does exist.
In discussing the second issue, the court mentions that in order for the right to publicity to descend to heirs, the public figure must have asserted the right during his or her lifetime. In this case, defendants argued that the Marx brothers never used their likeness to sell products and had therefore not exploited their rights. The court disagreed, pointing out that each of the brothers had created special, recognizable characters that had a public value. The fact that they never endorsed products was not important.
1. How did each plaintiff acquire rights of publicity?
2. How did Julius Marx demonstrate an intent to capitalize on the value of the name and likeness of the character of Groucho?