Experience Hendrix v. Hendrixlicensing.com

The Washington Publicity Rights Act can grant post-mortem publicity rights even when the person was not domiciled in Washington at the time of death, provided that the action sued on is premised with sufficient relation to the state of Washington.

Experience Hendrix (“Experience”) is the sole heir and trademark owner for deceased musician Jimi Hendrix. Experience sued Andrew Pitsicalis, owner of Hendrixlicensing.com, for trademark infringement. At trial, the district court granted partial summary judgment and awarded a permanent injunction, but reduced the jury’s damages award from $1.7 million to $60,000 and granted a new trial. Pitsicalis sought a declaratory judgment that the Washington Personality Rights Act (“WPRA”) did not provide Experience with post-mortem publicity rights. The court held on this counterclaim that the WPRA purported to give Experience post-mortem publicity rights, but that those portions of the Act were unconstitutional. Both parties appealed to the Ninth Circuit. While Pitsicalis’s WPRA challenge implicated broader constitutional concerns, the panel narrowed the issue to “Experience[’s] interference with the sale in Washington of Pitsicalis-licensed, unofficial but non-infringing goods bearing Hendrix’s likeness.” The panel held that the WPRA was constitutional as applied to the Washington sales and reversed the district court’s ruling. Regarding Pitsicalis’s challenge to the trademark claims, the panel upheld the lower court’s ruling, but remanded for alteration in the permanent injunction to clear up confusion as to the conduct to be enjoined. On damages, the panel held that there was evidence sufficient to reinstate the full jury award. However, the district court had conditionally granted a new trial on damages in the event that the appeals court reinstated the award. The panel held that this grant was warranted, noting that the district court had found the damages awards to be “against the clear weight of the evidence and the product of speculation, error, and disregard of the Court’s instructions.” The panel granted the new trial on Experience’s lost profits and damages for loss of reputation and goodwill. AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART AND REMANDED.