In the latest chapter of the suit between Princess Diana’s estate and the Franklin Mint, on appeal from the district court, the Ninth Circuit affirmed summary judgment for Franklin Mint and awarded it US $2.3 million in attorney’s fees. Lord Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002). The trustees of the Diana Princess of Wales Memorial Fund and the Estate of Diana, Princess of Wales (collectively “the Fund”) brought suit based on Franklin Mint’s promotion and sale of jewelry, plates and dolls bearing the name and likeness of the late Princess Diana, claiming violation of her right of publicity and false endorsement.
The Ninth Circuit decided against the Fund’s right of publicity claim because the law of Great Britain, Diana’s domicile at the time of her death, does not recognize a post-mortem right of publicity. After that decision, the California legislature amended the California right of publicity statute to “apply to the adjudication of liability and the imposition of any damages or other remedies in cases in which the liability, damages, and other remedies arise from acts occurring directly in this state.” The Fund argued that this amendment was a choice of law provision. Both the district court and the Ninth Circuit disagreed, finding that it “simply addresses the reach of the statute's coverage.” Significant to this conclusion was the fact that the phrase “whether or not the plaintiff is a domiciliary of this state” was part of the proposed amendment, but was deleted from the language adopted by the Legislature.
The Fund’s false endorsement claim failed as well. Franklin Mint and other companies had been selling collectibles bearing Diana’s name and image since 1981, when she married Prince Charles. Princess Diana neither authorized nor objected to any of these products. Because of this history, consumers had no reason to believe Franklin Mint’s products were endorsed by the Fund. In addition, Franklin Mint’s use of her name constituted a nominative fair use of the mark.
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