In the decades since Jimi Hendrix’s death, the classic rock icon’s likeness and work have been revived many times over. See the embattled, André 3000-starring biopic and last year’s posthumous People, Hell and Angels compilation for quick reference. But the late, great guitarist’s image has also appeared on T-shirts, posters, key chains, dart boards, and other kitschy items thanks to HendrixLicensing.com, a vendor run by Andrew Pitsicalis, who is business partners with Hendrix’s younger brother, Leon. Despite that familial affiliation, a new court decision finds that the venture was in breach of trademark rights owned by Hendrix’s estate, Experience Hendrix, which is controlled by the Hendrix brothers’ adopted sister, Janie.
In an opinion filed on January 29, the 9th Circuit Court of Appeals upheld a ruling at the district level that Pitsicalis’ use of the domain names HendrixLicensing.com and HendrixArtWork.com violated the estate’s trademark on the name “Hendrix.” Though Pitsicalis argued for protection under fair use, 9th Circuit Judge David Ebel ruled that he is still liable for trademark infringement.
This same decision has larger implications for dead celebrities, though. The 9th Circuit Court has reversed a 2011 determination that Washington’s Personality Rights Act — a law that allows anyone to enforce property rights on their name, voice, and likeness, regardless of whether they live in the state of Washington — is unconstitutional. Translation: Even though Hendrix was a resident of New York when he died, his estate has the right to sue in order to protect his name, image, etc., since Pitsicalis does business in Washington.
As the Hollywood Reporter points out, before Pitsicalis brought his venture to Washington, he cited “reasonable apprehension” that Experience Hendrix would use Washington’s Personality Rights Act to prevent him from licensing unofficial merchandise associated with the guitar legend. All of this is to say that other companies that deal in products related to celebrity images should maybe think twice before doing business in the state of Washington.
The 9th Circuit also addressed the issue of damages over the unlicensed merch. The district court that originally ruled in favor of Experience Hendrix in the case against Pitsicalis awarded the estate more than $1.7 million in damages, but struck all of that amount except for $60,000, claiming the majority was unsupported by the evidence presented. The 9th Circuit reinstates that full amount, but that decision doesn’t necessarily mean that Experience Hendrix will see $1.7 million — the 9th Circuit has decided to hold another trial because instructions given to the original jury were deemed too confusing.