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16 ¦ DECEMBER 21, 2020 NEWS

¦ From HOW U.S. on PAGE 15 ruling to mean that the court “did
Cousteau documentary Tribes on not reject the premise that the
the Edge, which utilized Jacques organizations would have had a
Cousteau indicia.) Battles over celebrities’ valid right on the image had they
estates often end up in presented evidence that Michael
For its right of publicity
claim, TCS alleged violation un- litigation, but a recent Jackson had intended to transfer

der French or Connecticut law. court ruling involving the right to them.”
Connecticut utilizes the “most
significant relationship” test from the estate of French Then in 2018, the Court of Cas-
sation rendered a decision on the
the Restatement (Second) of Con- oceanic explorer, issue in a dispute involving the es-
flict of Laws for choice of law tate of French cabaret artist Henri
concerning tort claims. Under environmentalist and Salvador. The defendants’ legal
this test, District Judge Thomp- documentary filmmaker expert in the Cousteau Connecti-
son noted: “Although the alleged Jacques Cousteau included cut case described the decision as
injuries to TCS and injurious a not-often-seen right of having “accurately found that an
conduct by the defendants oc- publicity consideration: image right, attributed to a person,

how a U.S. court

curred in Connecticut, those determines whether right- is extinguished upon the death of
injuries and conduct are spread of-publicity protection its proprietor” and can’t “be trans-

across the United States and even in another nation is mitted to his heirs.” See, Cour de
internationally given the alleged cassation [Cass.] 1e civ., Jan. 31,
infringing acts on the internet. descendible. 2018, 16-23.591. District Judge

So on balance the location of Thompson pointed out, however,
Jacques-Yves Cousteau’s domi- “there was no suggestion in that
cile [in France] at the time of his case that the right on the image was transferred to
death has the most significant relationship to these the widow prior to death.”
claims.” Judge Thompson thus determined that the
What wasn’t clear, however, was whether France’s “Court of Cassation cases seem to suggest that the
right of publicity is descendible. According to the right on the image … , if transferred prior to death,
Connecticut federal court, “The defendants and survives the death of the person with whom the
TCS have submitted affidavits from French lawyers right originated.”
supporting their respective positions. Those law- As a result, in The Cousteau Society the district
yers disagree about whether a post-mortem right court concluded, “because Jacques-Yves Cousteau
of publicity is recognized under French law.” transferred the right on his image before his death to
In 2015, the French Court of Cassation, the TCS, the right on his image survived his death and re-
highest judicial tribunal in that country, addressed mains enforceable by TCS under the laws of France.”
whether musical artist Michael Jackson transferred This article appeared in Entertainment Law & Fi-
a descendible exclusive right to use his name and nance, your monthly source for real-world news and
image in France. See, Cour de cassation, 1e civ., strategy from major players in entertainment, con-
Feb. 4, 2015, 14-11458. District Judge Thompson tract and intellectual property law — serious analysis
explained that the French court found the enti- of the issues and case law that affect your practice. ¦
ties claiming so “did not have an exclusive right in
France because the organizations did not produce Stan Soocher is Editor-in-Chief of Entertainment
evidence to support the conclusion that Michael Law & Finance and Professor of Music & Enter-
Jackson [who died in 2009] would have intended tainment Industry Studies at the University of
to grant to them the exclusive right on his image Colorado’s Denver Campus. For more informa-
in France.” Judge Thompson interpreted the French tion: http://www.stansoocher.com.

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