A tale of Hollywood love has ended in a cat fight from the grave — this clawing concerning the right of publicity by booming baritone Bing Crosby, the legendary music, film, television and radio superstar. His relationship with Dixie Lee — the beautiful blonde actress who was born Wilma Wyatt and was the singing start of “A Fine Romance” — lasted more than two decades and resulted in four children before her death in 1952. He later remarried, this time to the stunning brunette actress Kathryn Grant, with whom he stayed until his death in 1977. They had three children. But as happens in Hollywood, a battle has ensued between Crosby wife No. 1 as represented by Wilma’s Trust, and wife No. 2 — with the latest development in the long-running legal saga occuring recently in the appellate courts.
In 1996, Wilma’s Trust sued Kathryn and HLC Properties Ltd., which was hired to protect Bing’s estate, for the trust’s share of income derived from his and Wilma’s community property. The suit was settled in 1999 with the parties agreeing to release Kathryn and HLC from any future known or unknown claims pertaining to additional sources of community property.
Then, in 2008, the California legislature amended California Civil Code Section 3344.1 to allow a deceased celebrity, who died before Jan.1, 1985, to transfer the right of publicity by contract or by will or a testamentary instrument. In 2010, Wilma’s Estate sued Kathryn and HLC, wife No. 1 effectively asserting from the beyond a community property interest in the crooner’s right of publicity, which she acquired during their marriage. After a trial court held Wilma had such interest, Kathryn and HLC appealed. The parties disputed whether the California statute created a new right or merely clarified an existing one.
The appellate court reversed and found that Wilma’s community property interest in Crosby’s right of publicity was barred by claim preclusion. The 1996 lawsuit claimed Kathryn and HLC were liable to Wilma’s Trust for income derived from Bing and Wilma’s community property. Wilma’s estate is in privity with Wilma’s Trust. The present case sought to hold Kathryn and HLC liable again for income derived from Bing and Wilma’s community property but specifically to Bing’s right to publicity. The court found both claims to be the same – the asserted right to Wilma’s share of the community property owned by her and Bing. Based on res judicata, Wilma’s Estate was barred from re-litigating its claims to Wilma’s share of community property. Further, Wilma’s Estate released any claims to additional sources of community property, known or unknown, at the time of the 1999 settlement agreement between Wilma’s Trust and Kathryn and HLC.
Wilma’s Estate argued that res judicata does not apply in this case because the publicity right of Bing was newly discovered after the settlement, an exception to the settlement agreement. The court, however, rejected this argument, reasoning that the right of publicity was not an undiscovered asset generating income unbeknownst to the parties, nor was it undiscovered income at the time of the 1999 settlement agreement. The right of publicity always existed for a “deceased personality.” The 2008 amendment of Section 3344.1 was meant to clarify that such rights applied to deceased celebrities who died within 70 years prior to 1985 or afterward. Thus, to allow Wilma’s Estate claim to go forward would vitiate the release provision of the settlement agreement.
The court did not reach the argument as to whether the right of publicity is community property. Instead, it noted that the right of publicity may be separate property because it can be transferred in a manner that is contrary to how community property may be transferred.
It seems it was not a “White Christmas” for Wilma’s Estate, as they have lost the battle on all claims relating to any additional sources of community property per its settlement agreement.