February 22

APPEALING SUBJECTS
BY CRAIG MANSON
A Monthly - Weekend With Shades - Column

February on California's Central Coast can be bitterly cold. And for Florence Owens Thompson, a particular day in February of 1936, would be especially bitter and especially cold. It was the day her soul was stolen.

Desperate times had descended upon America and the rest of the world. By 1936, Oklahoma-born Florence Owens had been in California for more than a decade as she and her husband, Leroy Cleo Owens struggled to keep their family subsisting. They had traveled the length of the great Central Valley, enduring misfortune after misfortune. A sawmill in the town of Shafter burned down while Cleo was employed there. Later, he lost his job at a sawmill in Merced County. Then while doing agricultural work in Butte County, Cleo Owens became ill and died. Florence was expecting her sixth child at the time. She remained in Butte County with the rest of her husband's siblings.

But when she became pregnant again the year after her husband's death, Florence Owens fled with her children back to her family's home in Oklahoma. Eventually, circumstances drew her to California again and she left her youngest child with her mother, driving the other six back to Merced County.

Florence and her children became migrants, following work throughout the Valley and along the coast. On the afore-mentioned February day, she was headed to Nipomo on the coast with the children and a man named Jim Hill to a pea-picking camp. Hill, as Florence's grandson would describe it decades later, "had joined the family a year before, and acted as husband and father to Florence and her children." (See Roger Sprague's website, Migrant Grandson).

Mechanical trouble with her Hudson forced Florence to end the journey at a camp on Highway 101. Hill and Florence's son Troy went to find parts so they could fix the car. As Florence waited in a lean-to tent for the pair to return, a woman with a camera approached. The woman told Florence that her picture would help others. Florence would later recall that the woman also said that it would never be published.

The woman took six photographs of Florence and some of her children and then left without even having asked Florence for her name.

Notwithstanding whatever may have been said about publication, one of the photographs was published just days later. The photograph provoked an outpouring of sympathy and spurred action by the federal government. Tens of thousands of pounds of food soon arrived at the Nipomo camps. But Florence and her family had already moved on.

One of the most iconic photographs in human history is officially known as "Destitute pea pickers in California. Mother of seven children. Age thirty-two. Nipomo, California."

The photograph became one of the most iconic photographs ever taken. It was used to portray the desperation of families trapped in poverty during the Great Depression. It was reproduced numerous times and was made into a U.S. postage stamp in 1998.

Dubbed "Migrant Mother" at some point, the photograph has generated millions of dollars for various individuals and enterprises. A print with the photographer's handwritten notes sold for $244,500 in 1998. (The photographer had died in 1965). The photographer's personal print sold for $141,500 in 2002. In 2005, the original, along with thirty-one other vintage photos by the same photographer sold for $296,000.

The Library of Congress sells prints of Migrant Mother for $28 each. For $85.00, one may purchase a framed print with a plate containing a quotation from the photographer. And a framed display of all six of the Migrant Mother pictures may be had from the Library for $150.00.

Florence Owens Thompson never saw a penny of the money made by her likeness in Migrant Mother. Nor have any of her children or other descendants profited from the transcendent recognition of the photograph. Indeed, Thompson's identity was unknown to the public for more than forty years after the pictures were taken.

Thompson was fairly bitter about the photograph. She told The Modesto Bee in 1978:

"I wish she hadn't taken my picture. I can't get a penny out of it. She didn't ask my name. She said she wouldn't sell the pictures. She said she'd send me a copy. She never did."

Thompson's daughter, Katherine McIntosh, now 77 years old, recently told CNN:

"The picture came out in the paper to show the people what hard times was. People was starving in that camp. There was no food," she says. "We were ashamed of it. We didn't want no one to know who we were."

Florence Owens Thompson died 16 September 1983, in Scotts Valley, Santa Cruz County, California.

How could it be that someone could take a photograph of someone else, which photograph produces millions of dollars in income, and the subject not receive a single penny? Isn't there some way that Florence's descendants can be compensated? Don't they have rights? Can they sue the photographer?

The Photographer of Migrant Mother

The photographer who made the Migrant Mother pictures was Dorothea Lange. At the time, Lange worked for the federal agency known as the Resettlement Administration (later called the Farm Services Administration). Her job was to document the phenomenon of migration for economic reasons for a government report being prepared by economist Paul Taylor (who was Lange's husband).

Because the photographs were works for hire by the federal government, Lange received no royalties and the work is not subject to copyright. It is clear, however, that the pictures gave a tremendous lift to Lange's career. She was awarded a Guggenhiem Fellowship in 1941 for excellence in photography. she gave up the fellowship a year later in order to photograph the internment of Japanese-Americans. But in 1945, she was invited onto the faculty of the California School of Fine Arts by photography department head Ansel Adams.

The Law

The issue is whether Florence Owens Thompson had any rights in the photographs and whether these rights, if any, could be enforced today by her descendants.

The law generally recognizes a "right of publicity" which protects an individual's interest in the exclusive use of one's own identity as represented by one's name and likeness. This is a property right. It is considered a form of invasion of privacy to misappropriate another's name or likeness for commercial purposes. In some states, however, the rule is not limited to commercial appropriation. It applies also when someone makes use of another's name or likeness for his or her own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a monetary or economic one.

Every individual has the right to control the use of his or her name or likeness for commercial or other benefit. However, as a realistic matter, only prominently known persons are likely to have significant value attached to their name or likeness.

On the other hand, the courts have held that the First Amendment right in the gathering of news and information must be taken into account with respect to the interest in one's right to publicity. The public's right to know of matters in the public interest may override an individual's right of publicity. Arguably, that might be said of the Migrant Mother photographs.


Migrant Mother, Meet Dracula (Oh, and here's Rudolph Valentino, for Good Measure!)

California (where most of Florence Owens Thompson's descendants live) recognizes by statute a right of publicity. In 1979, the California Supreme Court decided a pair of cases concerning this right of publicity. In Lugosi v. Universal Pictures, 25 Cal.3d 813, 603 P.2d 425, the heirs of Bela Lugosi sought to recover profits against Universal's licensing of Lugosi's name and image on merchandise related to the film "Dracula." In Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 603 P.2d 352, Rudolph Valentino's nephew claimed that the defendant studio had misappropriated Valentino's right of publicity by producing a film about the singer's life.

The California Supreme Court found for the defendants in both cases, holding that the right of publicity is personal and must be exercised by that individual during his or her lifetime. The court said that publicity rights expire upon death. Under this ruling, the Migrant Mother's descendants would have no rights.

But California is, of course, the home of the motion picture and music recording industries. So the California Legislature was prevailed upon to bring some balance to the matter of rights of publicity. Nine years after the Lugosi and Valentino cases, the Legislature enacted section 990 of the California Civil Code [now see Civil Code sections 3344 and 3344.1], which provides that the rights of publicity of a "deceased personality" can be passed on to that deceased personality's heirs, whether or not that person used such rights during his or her lifetime. A "deceased personality" under the statute is someone (1) whose name, voice, photograph, likeness, or signature has commercial value at the time of the person's death, regardless of whether the person used the right of publicity during his or her lifetime and (2) died or dies after December 31, 1914. That would certainly seem to describe Florence Thompson.

The statute states that rights of publicity expire seventy years after the death of the individual.

In 2005, a dispute arose over whether the statute could be applied to the estate of Marilyn Monroe and, for that matter, any person who died before 1985. The issue was whether the Legislature intended to grant rights that did not exist when those individuals died. In 2007, the California Legislature unanimously passed a bill, heavily supported by the Screen Actors Guild, that clarified that the law indeed did apply to those who died before 1985. That bill also extended the prior limitation period from fifty years to the current seventy years.

A number of states now recognize this right of publicity by statute or otherwise.

So what's the lesson here for photographers and publishers of photographs? It is that copyright is not the only thing to be concerned with. In addition, photographers and publishers need to be concerned about rights of publicity and, if necessary, get releases with or without payment from living subjects in pictures, whether the subjects are already famous or not. Under a statute like California's, if a subject has died without commercial value in his or her name or likeness, the photographer or publisher is probably safe from liability for misappropriating the name or likeness of the person.

And what of the Migrant Mother? Because the photographs were original works of the United States Government, and because federal courts have ruled that the Copyright Act trumps state publicity laws, it is unlikely that her descendants will ever have a claim to any of the millions of dollars made from the picture of their mother and some of her children.

Florence Owens Thompson is buried in Lakewood Memorial Park, Hughson, Stanislaus County, California.

Last Month's Quiz:

This is a portrait (obviously not contemporary) of the Louisiana Supreme Court (the man in the middle is not one of the justices; he is Governor Luther E. Hall.) I don't know when it was taken or by whom or for what purpose. I don't even know where I first saw it! It could be a true orphan. But is it really? Let's see if we can find out if this photograph is still subject to copyright protection or not. Also, try to put together a scenario under which it might still be subject to copyright.

This turned out not to be very complicated. A Google search is at the outset long and tedious; so abandoning that ship for the Library of Congress pays off immediately. In the Library's Prints & Photographs Online Catalog (PPOC), using the phrase "Louisiana Supreme Court," this photo is first up. Helpfully, the PPOC tells us about rights restrictions.

We learn that this picture was taken by H.J. Harvey of New Orleans in 1913. Given that, the copy right would have expired in 1941 under the 1909 Act and could be renewed until 1969. But there was no renewal. So this is not an orphan--it is in the public domain. If however, the work was created before 1978, but not published or registered by January 1, 1978, then the copyright would endure under the 1976 Act as amended for the life of the author plus 70 years. As it turns out, Mr. Harvey (1885-1970) was long-lived (See Records of Metairie Cemetery, Orleans Parish, Louisiana). If he had not published or registered his photograph until the last year of his life, it would be protected until 2040. If the picture had been an anonymous or pseudonymous work (unless the author’s identity was revealed in Copyright Office records), the duration of copyright will be 95 years from publication (2008).


This column is intended for general educational purposes only. Nothing herein is intended as, or should be construed as, a substitute for legal advice or a solicitation for clients. Craig Manson is an active member of the California Bar and is admitted to practice before all California state courts, the United States Supreme Court, and various other federal courts. If you have an actual legal problem, consult a licensed attorney in your jurisdiction.