Does the Right to Privacy Survive Death?

A Strange Journey to an Answer

Jay Chafetz

The right to privacy is sometimes asserted in personal injury cases as a limitation on the rights of defendants to subpoena medical records. A plaintiff waives his or her privacy rights by filing a personal injury action only as to the parts of the body tendered in the lawsuit. See Roberts v. Sup. Ct. (1973) 9 Cal.3d 330, 337-338; Jones v. Sup. Ct. (1981) 119 Cal.App.3d 534, 546, 547, 174 Cal. Rptr. 148. Do privacy rights survive death, so that they can be raised to limit the records subpoenaed in a wrongful death case? Or, after death, is everything fair game?

Researching the answer to this question led to the discovery of a series of interesting and unusual cases, which illustrates the striking paths down which one can be transported while tracking down something more mundane. Follow along in my journey.

In Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, (yes, the Lugosi of Dracula fame) the widow and son of Bela Lugosi sued the movie studio to recover profits the studio made using the likeness of Bela Lugosi under a contract made in 1930.

The California Supreme Court held that the right to exploit a name and likeness is personal to an artist and has to be exercised by him during his lifetime. This specific ruling was later overturned by the Legislature (it added Civil Code section 3344.1 in 1984). However, the principle enunciated by the court that common law privacy rights do not survive the death of the person in whose favor they existed probably still represents the view of the court. The court cited a statement by Prosser to the effect that there is no common law right of action for a publication concerning one who is already dead.

The Seventh Circuit had previously concluded a case consistent with this principle when it held that the administratrix of the estate of Al Capone could not bring an action for unjust enrichment arising out of the defendant’s alleged appropriation of the name, likeness and personality of Al Capone. The court accepted the defendant’s argument that the action for unjust enrichment was in essence an action for the invasion of the right of privacy of Al Capone, which could not survive his death. Maritote v. Desilu Productions, Inc. (7th Cir. 1965) 345 F.2d 418.

Before that, a California appellate court had held that the widow of Jesse James, Jr., could not sue a film producer of a television show portraying the life of her husband for “exploitation of plaintiff’s deceased husband’s personality and name for commercial purposes.” The court treated the two causes of action alleged in the complaint regarding this as personal to the deceased, so that even if there was an invasion of the right of privacy it was not a right that survived death. James v. Screen Gems, Inc. (1959) 174 Cal. App. 2d 650.

The common law of privacy comprises four distinct kinds of invasions of four different interests: (1) Intrusion upon the plaintiff’s seclusion or solitude or into his private affairs; (2) Public disclosure of embarrassing private facts; (3) Publicity which places the plaintiff in a false light in the public eye; and (4) Appropriation for the defendant’s advantage, of the plaintiff’s name and likeness. Lugosi, supra, 25 Cal.3d at 819. As to any of these four, the courts were in agreement that the plaintiff’s right is a personal one, which does not extend to members of the plaintiff’s family (unless their own privacy is invaded along with his). Also, there is no common law right of action for a publication concerning one who is already dead. Lugosi, supra, 25 Cal.3d at 820.

In Flynn v. Higham (19843) 149 Cal.App.3d 677, the children of actor Errol Flynn were not permitted to bring a defamation action against the author and the publisher of a book about their father based upon allegations that the book stated that their father was a Nazi spy and a homosexual. In affirming the order sustaining the defendants’ demurrer, the appellate court stated: “ ‘Defamation of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse, family, or relatives, who are not themselves defamed.’ ” 149 Cal.App.3d at 680. The plaintiffs also could not cast their claim as one based upon the right of privacy because the publication must invade the plaintiff’s privacy. Where the publication is directed at another individual and refers only incidentally to the plaintiff but is not directed at him, no recovery can be had. “Where the plaintiff’s only relation to the wrong is that he is a relative of the victim of the wrongdoer, and was unwillingly brought into the limelight, no recovery can be had.” (Flynn, supra, 149 Cal. App.3d at p. 683.)

Do these cases mean that any use of a person’s likeness after his death is permitted? No. In Catsouras v. Department of California Highway Patrol (2010) 181 Cal. App. 4th 856, 104 Cal. Rptr. 3d 352, plaintiffs’ decedent was decapitated in a motor vehicle accident. Plaintiffs alleged that CHP officers had emailed nine gruesome death images of the decedent to their friends and family members on Halloween – for pure shock value. Subsequently, the photographs were spread across the Internet. The court concluded that the trial court erred in sustaining the officers’ demurrer as to plaintiffs’ invasion of privacy cause of action because the rights being protected were those of the living. The court relied on several cases in other jurisdictions where a cause of action had been allowed when the plaintiffs could be construed to be invoking their own privacy rights and not those of the decedent.

In one such case in particular, National Archives and Records Admin. v. Favish (2004) 541 U.S. 157, 168-169, the United States Supreme Court determined whether photographs of certain body parts of a decedent who had apparently committed suicide were exempt from disclosure under a provision of the Freedom of Information Act. It held that they were, emphasizing that the decedent’s relatives were invoking their own privacy rights, not the rights of the decedent. Thus, the Court recognized that family members have a privacy right in the death images of a decedent.

But all of this deals with the four common law tort actions for invasion of privacy. What about the right of privacy contained in Article 1 Section 1 of the California constitution, which is the privacy right raised in connection with the physician-patient privilege, when a plaintiff wishes to restrict the medical records that the defendant may subpoena?

My search finally led me to Boling v. Sup. Ct. (1980) 105 Cal.App.3d 430. There, the plaintiff in a wrongful death suit sought to reverse an order of the trial court to produce certain records pertaining to the decedent, her son. The plaintiff mother claimed the psychotherapist-patient privilege barred disclosure of the records. The defendant claimed that the mere filing of the wrongful death action, with its attendant request for general damages for the loss of the love and companionship of the son, meant that the plaintiff had automatically tendered an issue regarding all aspects of the mental health of the son. The court disagreed, holding that the psychotherapist-privilege could still be claimed after the son’s death and that “[a] valid claim of the privilege by plaintiff will preclude discovery, unless and until it is shown that the records are ‘relevant to an issue concerning the mental or emotional condition of the patient’ which has been ‘tendered;’ in the action . . . and which has been precisely defined in its course.” Boling, supra, 105 Cal. App.3d at 442 (emphasis in original).

The court also held, however, that the mother had not yet established her standing as the holder of the privilege under Evidence Code section 1013 (c). (This section states that the holder of the privilege is the “personal representative of the patient if the patient is dead.”) The court further held that the court itself had the obligation to maintain the confidentiality of the material under Evidence Code section 916, which requires the “presiding officer, on his own motion” to exclude privileged information if the person from whom it is sought is not a person authorized to claim the privilege and the presiding officer is not authorized to disclose the information by a person authorized to permit disclosure. Evid. C. § 916 (b)(1).

The court did not discuss the constitutional right of privacy, so it is not clear if that right survives death, as the right to claim the statutory physician-patient and psychotherapist- patient privileges does, but in contrast to the common law right of privacy that supports the four common torts for invasion of privacy, which does not.

See also Hale v. Sup. Ct. (1994) 28 Cal.App.4th 1421 (where the doctor- patient relationship existed between the defendant, who caused a motor vehicle accident when she crossed over the centerline – apparently due to a medical condition – and the doctors who treated her before she died, during her hospitalization after she was injured in the same accident; “[E]ven if part of [the decedent defendant’s] medical condition is in issue, it does not follow that [she] waived the privilege as to otherwise protected aspects of her medical history during her lifetime, or some condition she may have suffered from at the time of her death clearly unrelated to the accident.” Hale, supra, 28 Cal.App.4th at 1424. See also Rittenhouse v. Sup. Ct. (1991) 235 Cal.App.3d 1584 (administrator of estate could invoke physician-patient and psychotherapist- patient privilege to prevent disclosure of decedent’s medical records in will contest case).

Sometimes the trip can be as much fun as arriving at the destination.

Jay Chafetz practices in Walnut Creek, specializing in personal injury, medical malpractice, elder abuse, and trust and will contests. He is on the Board of Directors of Contra Costa County Bar Association and the Litigation Section.

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