July 13th, 2009 at 08:54am
Under Civil Rights Law
Creation of the Right of Publicity in California
The “right of publicity” is generally defined as the right to control or prevent the unauthorized use or commercial exploitation of one’s name, likeness, voice or “personality.”[1] The right of publicity evolved from the right of privacy, which itself has evolved dramatically over more than a century. In 1890, Samuel D. Warren and Louis D. Brandeis published a seminal article in the Harvard Law Review entitled The Right to Privacy,[2] in which they argued for a remedy for those injured by unauthorized public disclosure of truthful but embarrassing private facts.[3]
By the mid 1900’s, some courts and state legislatures had adopted some elements of the Brandeis-Warren theory. However, the question arose as to how to apply these rights to celebrities who had voluntarily and affirmatively sought the spotlight.
Second Circuit Judge Jerome Frank answered that question in 1953 when he coined the term “right of publicity” in the case of Haelan Laboratories Inc. v. Topps Chewing Gum, Inc. [4] The Haelan case asked whether a baseball player could assign exclusive rights to produce a card with his photograph on it to one single baseball card manufacturer.[5] The court determined that prominent persons do possess a “right of publicity”[6] which was an assignable interest, unlike the strictly personal – and therefore non-assignable — right to privacy.[7]
Judge Frank’s opinion was followed by a prominent article by Professor Melville B. Nimmer that analyzed the right to publicity as an assignable property right.[8] Nimmer explained that a mere right to privacy did not sufficiently address the issues unique to celebrities; while the right to privacy protected individuals from indignity and embarrassment, the right to publicity dealt with a celebrity’s ability (and, theoretically, anyone’s ability) to protect the commercial value of his or her image and identity.[9]
California first codified the right of publicity in 1971, when the California legislature enacted Civil Code section 3344, which enables recovery by any living person whose name, photograph, or likeness has been used for commercial purposes without his or her consent.[10] California courts have recognized both the statutory and the common law right of publicity. [11]
However, both the common law and statutory rights of privacy were only available to living plaintiffs; the right was not freely descendible and thus expired by operation of law upon the death of the person claiming the right.[12] This very issue lay at the heart of two seminal companion cases decided in 1979: Lugosi v. Universal Pictures[13] and Guglielmi v. Spelling-Goldberg Productions.[14] In those cases, the California Supreme Court determined that the heirs of deceased celebrities had no statutory protections against posthumous exploitation of the celebrity’s image.
In Lugosi, the heirs of actor Bela Lugosi (best known for playing the title role in the 1930 movie, “Dracula”) sued to enjoin and recover profits from Universal Pictures for licensing Lugosi’s name and image on merchandise.[15] The California Supreme Court upheld the decision of appellate court in finding that the right to exploit one’s name and likeness is personal and must be exercised, if at all, by him during his lifetime.[16]
Similarly, in Guglielmi, the California Supreme Court cited to and relied upon its opinion Lugosi in holding that Rudolph Valentino’s heirs could not obtain an injunction or damages from the defendant because Valentino’s right of publicity was not descendible under California law.[17] Because Valentino had not exploited his name and likeness during his lifetime, others could now use it without liability to Valentino’s heirs.[18]
Courts outside of California honored the Lugosi and Guglielmi decisions as well in applying California law. In Groucho Marx Productions, Inc. v. Day and Night Company, Inc.[19], the Second Circuit held that the rights of publicity were not descendible under California law. In that case, the Marx Brothers’ assignees sued a production company for interference with the assignees’ publicity rights; the production company incorporated three characters that strongly resembled the Marx Brothers in its Broadway musical, “A Day in Hollywood/ a night in the Ukraine.” The federal district court in New York had applied New York law, determining that New York recognized a descendible right to publicity and granting summary judgment to the plaintiffs.[20] The Second Circuit, however, reversed that decision, holding that the descendibility issue was governed by California law and as a result, the plaintiffs had no right to relief.[21]
Legislating a Post-Mortem Right of Publicity
The holdings in Lugosi and Guglielmi precipitated legislation designed specifically to create a statutory descendible right to publicity. In 1984, the California legislature enacted Civil Code section 990 (renumbered as section 3344.1 in 1999), creating a post-mortem right of publicity for “deceased personalities,” – individuals whose names, voices, signatures, photographs, or likenesses had commercial value as of the time of their death.[22] This legislation became effective January 1, 1985.
Section 990 explicitly stated that the right of publicity is a property right, “freely transferable, in whole or in part, by contract or by means of trust or testamentary documents” whether that transfer occurs before, by or after death of the personality.[23] The statute held that absent an explicit transfer of this right, it automatically goes to the statutory/ intestate heirs of the deceased (spouse, children, parents).[24] If the celebrity fails to transfer the right explicitly and dies without any statutory heirs, the right of publicity terminates.[25] Otherwise, the extended right of publicity would expire 50 years after the death of the deceased personality.[26]
In an attempt to maximally preserve First Amendment protections for creative outlets, the new statutory provision exempted from liability plays, books, magazines, newspapers, musical compositions, films, and radio and television shows that used a deceased celebrity’s likeness, name, voice, etc.[27]
The registered owner of the posthumous rights to The Three Stooges comedy act relied on section 990 to obtain damages against an artist who reproduced his charcoal drawings of the act on lithographs and t-shirts.[28] The artist had claimed that his artwork was creative and transformative enough to warrant First Amendment protection against the plaintiff’s right of publicity claim, just like the specifically listed exemptions in the statute. The court agreed that when a work of art is so transformative that the value of the work derives primarily from the skill and creativity of the artist rather than from the fame of the celebrity depicted, the work may be protected by the First Amendment.[29] However, the court determined that Saderup’s depictions were more literal than transformative — a clear attempt merely to exploit the Three Stooges’ fame — and therefore First Amendment protection did not apply.[30] If Saderup wanted to continue to use these images, he needed to obtain the consent of the right of publicity holder.
However, that same list of exempt uses in section 990 posed new problems, exemplified in two main cases:
In Joplin Enterprises v. Allen,[31] a federal district court applied section 990 to find that a two-act biographical play about deceased singer Janis Joplin was not actionable. Joplin’s devisees alleged that the play constituted copyright infringement as well as misappropriate of Joplin’s privacy and publicity rights.[32] The court determined that section 990 applied only to unauthorized “merchandise, advertisements and endorsements,” and it explicitly exempted plays from liability.[33]
The Ninth Circuit similarly exempted an instructional dance video from liability under section 990 in Astaire v. Best Film & Video Corp.[34] In Astaire, the widow of famed dancer Fred Astaire sued a videotape manufacturer for using Fred Astaire’s image in a series of dance instructional videotapes – each tape opened with about 90 seconds of footage of Astaire. Mrs. Astaire claimed the company violated her statutory right to control the use of her husband’s name and likeness under section 990.[35]
The Central District of California agreed with Mrs. Astaire, finding that the company used Astaire’s image “on or in products, merchandise, or goods” in violation of the statute.[36] But the circuit court reversed and remanded, finding that the pre-recorded videotapes fell into the “film” exemption of section 990(n).[37] Indeed, the court determined that the film exemption applied even if the use was an advertisement or commercial announcement.[38]
The Astaire Amendment: Deleting exempt uses
After losing her difficult and expensive lawsuit, Mrs. Astaire teamed up with the Screen Actors Guild to sponsor legislation that would clarify and expand the post-mortem right of publicity. That bill, SB 209, passed in 1999 and became known as the “Astaire Celebrity Image Protection Act.”
Most significantly, the Astaire Amendment eliminated the list of exempt uses of deceased celebrity likenesses, thereby substantially increasing the types of uses for which consent of the celebrity’s heirs is required. The bill also extended the descendible right of publicity from 50 years to 70 years following the celebrity’s death.[39]
Despite these amendments to clarify and expand the descendible posthumous right of publicity, there remained a gap in the law that was revealed by two similar cases regarding the posthumous rights of Marilyn Monroe: Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc.[40] and Shaw Family Archives, Ltd. v. CMG Worldwide, Inc.[41] (collectively, the “Monroe cases”). When Marilyn Monroe died, she left the residue of her estate to her acting coach, Lee Strasburg, who, upon his death, left most of his estate to his wife, Anna Strasberg.[42] Anna Strasberg then transferred her interest in Monroe’s estate to Marilyn Monroe LLC, who licensed CMG Worldwide, Inc. to use Monroe’s images and likenesses.[43] In these two actions, CMG sued other parties for their unauthorized use of Monroe’s image.
In the Monroe cases, both courts interpreted section 3344.1 as prohibiting publicity rights from passing by will if the personality died prior to January 1, 1985.[44] In other words, the statutory descendible right of publicity did not exist when Monroe died, so, by operation of law, it could not have been a property right that she possessed upon death.[45] Because Monroe did not own this property right at the time of her death, she could not have transferred it in the residuary clause in her will.[46] Moreover, even if Monroe did possess the right, section 3344.1 only enables transfers to statutory heirs – Monroe had no statutory heirs, so her right would terminate in any event.[47] Both courts ruled against CMG on summary judgment.
The holdings in the Monroe cases had unsettling implications. Many deceased celebrities and their devisees left or transferred residual estates to charitable organizations, which relied in part on their ability to license the famous images for fundraising purposes. The Monroe holdings effectively removed from these organizations many rights they had relied upon. Reflecting these concerns, the federal district court for the Central District of California wrote:
The court reaches this conclusion with some reluctance because … at least some personalities who died before passage of the California … right of publicity statute[] left their residuary estates to charities, which will be “divested” of those rights under the court’s holding… As noted, however, nothing in this order prevents legislatures from enacting right of publicity statutes so as to vest the right of publicity directly in the residuary beneficiaries of deceased personalities’ estates or their successors-in-interest.[48]
The 771 Amendment: Enabling retroactive transfers to residual estates
The California legislature wasted no time following the suggestion of the Milton H. Greene court. Merely six weeks after that opinion was published, State Senator (and former child actor) Sheila Kuehl[49] fast-tracked through the legislature[50] Senate Bill 771, designed specifically to clarify the scope of Cal. Civil Code section 3344.1 and to abrogate the decisions in the Monroe cases.[51]
The somewhat controversial SB 771 accomplished several goals. First, it explicitly stated that a deceased celebrity’s right of publicity applies to individuals whether or not they died before January 1, 1985.[52] The amendment deems, retroactively, that a deceased celebrity’s right of publicity existed and was transferable even if they died before the enactment of section 3344.1.[53] In the event the celebrity did not expressly transfer this right (and why would they, if they didn’t know it existed?), the right became part of the deceased personality’s residual estate and was transferred to whomever received those assets.[54] The resulting owner of that right has 70 years from the date of the celebrity’s death to control use of the celebrity’s image for commercial purposes.[55]
Despite the efforts to get SB 771 drafted and passed quickly, it still did not help CMG Worldwide and Marilyn Monroe LLC (“MMLLC”). On November 21, 2007, armed with the newly-passed SB 771, CMG and MMLLC filed a motion for reconsideration in the Milton H. Greene case, which the federal district court granted.[56] The court agreed that, due to the passage of SB 771, CMG and MMLLC did have standing to assert Monroe’s posthumous right of publicity under California law.[57] However, after a detailed analysis, the court determined that Monroe was domiciled in New York, not California, at the time of her death.[58] Because New York did not recognize either a common law or statutory posthumous right of publicity in 1962 and because, unlike California, New York has not passed a statute to recognize such rights retroactively, Monroe did not possess the right to publicity when she died and therefore could not have transferred it in her will.[59]
Right of Publicity Laws in Other States
Though the right of publicity is derived from the Constitutional notion of the right of privacy, it is created and enforced via state laws. At least nineteen states have developed and passed a statutory right of publicity[60]; not all of them treat the right as descendible.[61] At least eleven other states only recognize a common law right to publicity.[62] The American Law Institute’s Third Restatement of Unfair Competition (1995), section 46, also recognizes the right of publicity as a separate legal theory.
The state of Indiana actually has the most comprehensive right of publicity statute on the books.[63] Enacted in 1994, Indiana’s law protects a deceased individual’s right of publicity for 100 years after his death and includes protections for the celebrity’s signature, photograph and gestures, as well as the more typical name, image and likeness.[64] Otherwise, Indiana’s law is similar to Cal. Civil Code section 3344.1.
New York, on the other hand, gives celebrities a statutory claim against the use of only their “name, portrait, or picture…. for advertising purposes or for the purposes of trade.”[65] New York Senator Martin Golden and Assemblywoman Helene Weinstein presented SB 6005/ Assembly Bill A08836[66] to the New York Legislature. While early attempts were made to rush that bill through the New York legislature, the bill was halted, apparently due to concerns that it is overly broad in nature, posing potential conflicts with Constitutional rights and other rights.[67]
Potential Negative Implications of SB 771
The New York legislature’s hesitancy to rush right into endorsement of its bill — the identical twin to California’s SB 771 — reflects some of the real concerns about and potential problems resulting from SB 771.
Because SB 771 is retroactive in nature, it may grant rights to some people retroactively while taking away from others rights that they had relied upon by entering into contracts and otherwise lawfully exploiting certain images.[68] As a result, this area is certainly ripe for testing, with the strong possibility of some untenable judicial results and, subsequently, more statutory amendments.
The statute attempts to preempt some future litigation by including this condition: If a statutory heir[69] exercised his or her rights to exploit a deceased celebrity’s likeness before May 1, 2007, and that exercise was not challenged successfully in court by a transferee of the celebrity’s residual estate, the residual estate transferees cannot use SB 771 to now come back and claim that right to publicity.[70] In fact, in this factual scenario, the residual estate is forever barred from claiming the right of publicity, which remains with the statutory heirs throughout the statutory period.[71]
However, that statutory provision does not address what will certainly be the more common situation – when the transferees of a celebrity’s residual estate file suit for damages and an injunction against a person or company that lawfully used that celebrity’s image or likeness for commercial purposes long before enactment of SB 771. Due to the retroactive nature of SB 771, the residual estate could theoretically reach back many years and disgorge substantial profits from an entity whose use had been legal throughout that time, as well as permanently enjoin future use by an entity who may have built an entire brand around the use.
Because the right to publicity differs so dramatically from state to state, and because there is so much overlap between right to publicity issues and issues dealing with trademark and copyright law, First Amendment protections, and other laws, several groups are pressing for Congressional enactment of a federal right to publicity law. The proposal by the International Trademark Association, for example, would amend the Lanham Act to add a federal right of publicity that would specifically preempt all state law, both statutory and common law.[72]
The INTA’s proposed federal law does include a descendible and transferable right of publicity effective for a period of time after a celebrity’s death.[73] However, it also includes a provision that the California’s law lacks – a “grandfather clause” that protects the rights of prior users.[74]
Conclusion
Undoubtedly, California’s right of publicity statute remains on the frontlines of the evolution of this legal concept. As home to an abundance of celebrity’s, California’s statute is frequently tested and amended when those tests reveal a gap in the law. Senate Bill 771 represents only the latest step in the evolution, but it probably goes too far, creating more legal problems than it may solve.
As a result, SB 771 certainly will not be the last word on California’s statutory descendible right of publicity. Whether ultimately preempted by a new federal law or not, the California statute will need to address the rights of prior users who acted in reliance on their pre-SB 771 rights and are harmed as a result of this retroactive bill. Future litigation on this very issue, likely followed by yet another legislative amendment, is predictable.
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[1] See, e.g., Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 99. 988-989, n.6 (9th Cir. 2006).
[2] Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
[3] Id. at 213.
[4] 202 F.2d 866, 868 (2nd Cir. 1953).
[5] Id. at 867.
[6] 202 F.2d at 868.
[7] Id. at 868-869.
[8] Melville B. Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203 (1954).
[9] Id. at 203-04.
[10] Cal. Civil Code. Section 3344(a). The statute exempts from liability uses made in connection with news, public affairs, sports broadcasts or accounts, and political campaigns. Cal Civil Code, section 3344(d).
[11] Miller v. Glenn Miller Prod., Inc., 454 F,3d 975, 988-89, n.6 (9th Cir. 2006).
[12] Lugosi v. Universal Pictures, 25 Cal. 3d 813, 820-822 (1979).
[13] Lugosi, supra.
[14] 25 Cal. 3d 860 (Cal. 1979).
[15] Lugosi, 25 Cal. 3d at 817.
[16] Id. at 822-823.
[17] 25 Cal. 3d at 864.
[18] The implication is clear that had Lugosi and Valentino actually contracted with the defendants regarding use of their likenesses during their lifetimes, the heirs would have the right to enforce those contracts posthumously. In these cases, however the defendants were using the images without the benefit of a contract that related to use of the images.
[19] 689 F.2d 317 (2d Cir. 1982).
[20] 689 F.2d at 319.
[21] Id. at 323.
[22] Cal. Civil Code section 3344.1(h).
[23] (Former) Cal. Civil Code section 990(b) (now amended and renumbered)
[24] Id. at 990(d).
[25] Id. at 990(e).
[26] Id. at 990(g).
[27] Id. at 990(n).
[28] Comedy III Productions Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001).
[29] 25 Cal. 4th at 407.
[30] Id. at 409.
[31] 795 F. Supp. 349 (W.D. Wash. 1992).
[32] Id. at 350.
[33] Id. at 351.
[34] 116 F.3d 1297 (9th Cir. 1997), as amended by 136 F. 3d 1208 (9th Cir. 1998).
[35] 116 F.3d at 1299.
[36] Id. at 1300.
[37] Id. at 1301-1302.
[38] Id. at 1302.
[39] Cal. Civil Code section 3344.1(g).
[40] Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc. (unreported), (No. CV-05-02200MMM), 2008 WL 655604 (C.D. Cal. Jan. 7, 2008), summary judgment affirmed by Milton H. Greene Archives v. CMG Worldwide, Inc., ___ F. Supp. ___. 2008 WL 1922980, No. CV 05-2200 MMM (C.D. Cal. March 17, 2008).
[41] 486 F. Supp. 2d 309 (SDNY 2007).
[42] Shaw, 486 F. Supp. at 312.
[43] Id.
[44] Id. at 317; Milton H. Greene, 2008 WL 655604, at *1.
[45] Shaw at 319; Milton H. Greene, 2008 WL 655604, at *1.
[46] Shaw at 319.
[47] Shaw at 319; Milton H. Greene, 2008 WL 655604, at *1-2.
[48] Milton H. Greene court’s May 14, 2007 Order granting summary judgment in favor of plaintiffs, at 36:15-20, n.38 and n.80.
[49] The bill was drafted and sponsored by the Screen Actors Guild at the urging of CMG. It received strong support from the Cecil B. DeMille Foundation, the Marilyn Monroe LLC, the Motion Picture and Television Fund, [John] Wayne Enterprises and the California Labor Federation.
[50] The bill passed through the California legislature on September 7, 2007 and was signed into law by governor Arnold Schwarzenegger on October 10, 2007. It took effect January 1, 2008.
[51] Section 2 of Stats. 2007, c. 439 (S.B. 771).
[52] Cal. Civil Code section 3344.1(b).
[53] Id.
[54] Id.
[55] Cal. Civil Code section 3344.1(g).
[56] Milton H. Greene Archives v. CMG Worldwide, Inc., ___ F. Supp. ___. 2008 WL 1922980, No. CV 05-2200 MMM (C.D. Cal. March 17, 2008).
[57] ____ F. Supp. at ____; 2008 WL 1922980 at *3.
[58] More specifically, the court found that authorized representatives of Monroe’s estate had repeatedly represented in various forums that Monroe was a resident of New York, not California, and was only in California temporarily for work, with no intent to remain in California. The court performed a lengthy and detailed analysis to determine that CMG was barred by judicial estoppel from asserting that Monroe was domiciled in California and therefore possessed a right of publicity under California laws. 2008 WL 1922980, at *33 – *34.
[59] Id. at *3.
[60] These 19 are: California (Cal. Civ. Code section 3344 and 3344.1), Florida (Florida Stat. section 540.08), Illinois (Ill. Rev. Stat. ch. 765 section 1075/1 et seq.), Indiana (Ind. Code section 32-36-1 et seq.), Kentucky (Ky. Rev. Stat. Ann. Section 391.170), Massachusetts (Mass. Gen. L., ch. 214 section 3A), Nebraska (Neb. Rev. Stats. Section 20-202), Nevada (Nev. Rev. Stat. sections 597.770 – 597.810), New York (N.Y. Civil Rights Law sections 50, 51), Ohio (Ohio Rev. Code Ann. Sections 2741.01 et seq.), Oklahoma (Ok. Stat., Title 12, sections 1448 and 1449), Pennsylvania (Pa. Cons. Stat. Title 42, section 8316), Rhode Island (R.I. Gen. Laws sections 9-1-28 and 9-1-28.1(a)(2)), Tennessee (Tenn. Code Ann sections 47-25-1102 to 47-25-1107), Texas (Texas Prop. Code Ann. Section 26.001 et seq.), Utah (Utah Code Ann. section 45-3-1 et seq.), Virginia (Va. Code section 8.01-40), Washington (Wash. Rev. Code Ann. 63.60-010 et seq.) and Wisconsin (Wisc. Stat. section 895.50(2)(b)).
[61] The following states’ right of publicity statutes do not appear to grant rights after death: Massachusetts, Nebraska, New York, Rhode Island, Pennsylvania, Utah, and Wisconsin.
[62] They are: Alabama, Arizona, Connecticut, Georgia, Hawaii, Maine, Michigan, Minnesota, Missouri, New Jersey, and Oregon.
[63] Ind. Code. Ann. Sections 32-36-1 et seq.
[64] Id. at 32-36-1-7 and 32-36-1-8(a).
[65] N.Y. Civ. Rights Law sections 50 and 51 (McKinney 2007).
[66] The New York bill is essentially identical to California’s SB 771. Like SB 771, it was introduced immediately after publication of the Monroe decisions and was similarly backed by CMG. There were rumors that CMG had hired a lobbyist specifically to assist the bill’s expedition.
[67] “Marilyn Monroe Historic Legislation Halted – Surprise to CMG and MMLLC”, PR-inside.com, June 25, 2007, located at http://www.pr-inside-com/marilyn-monroe-historic-legislation-halted-r161341.htm#.
[68]David Marcus, attorney for the Shaw Family Archives, claims (without specificity) that SB 771 conflicts with California laws relating to wills and estates. New York intellectual property attorney Nancy Wolff asserts that the California legislature violated its own procedural rules when it rushed SB 771 through. (“California Adopts New Right of Publicity Law,” pdnonline.com, October 12, 2007 (located at http://www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003658099). If either or both of these assertions are true, they would provide additional grounds for legal challenges to SB 771.
[69] Other than someone who was specifically disinherited by the deceased personality. Cal. Civil Code section 3344.1(o).
[70] Id.
[71] Id.
[72] See the INTA’s Adopted Resolution on the Federal Right of Publicity at http://www.inta.org/index.php?option=com_content&task=view&id=285&Itemid=153&getcontent=3.
[73] Id.
[74] Id.
Mr. Zuber is a partner of
Zuber & Taillieu LLP, where he specializes in
patent and
trademark transactions. He earned a J.D. from Columbia Law School, an M.P.P. from Harvard University, and a B.S. in engineering from Rutgers University, where he graduated with highest honors.
July 12th, 2009 at 02:54am
Under Civil Rights Law
As the economic downturn worsens and unemployment rises in America, civil rights advocates and lawyers and Hispanic, Latino and Mexican-American discrimination attorneys in California fear the result may be an increase in discrimination toward Hispanics, Latinos and Mexican-Americans in the U.S.
If you have been the victim of discrimination toward Hispanics, Latinos or Mexican-Americans, visit our website at http://www.CaliforniaAttorneysLawyers.com and call us at any of the numbers easily found on our website.
While America has always stood for being a country with diverse ethnic cultures that make us great, the fear is that those who have the least, may suffer the most in this economic downturn as unemployment rises and jobs, even those that were previously unwanted, now become a precious commodity.
At the Law Firm of R. Sebastian Gibson, California Hispanic, Latino and Mexican-American Discrimination Lawyer, Sebastian Gibson has always stood for the protection of the civil rights of everyone living in the U.S. We fight for the rights of Hispanics, Latinos and Mexican-Americans to be treated with the same respect and the protections afforded to them under the law as every one else should be in America. And we are concerned that in these uncertain times, Hispanic, Latino and Mexican-American families do not become the object of discrimination when we should all be pulling together to help each other in times of need.
While African-Americans in this country have for many decades, always suffered the most unemployment, Hispanics and Latinos are not far behind. And while African-Americans can now look to President Obama as an inspiration to what a person can do of any race, Hispanics, Latinos and Mexican-Americans as well as other minorities, still suffer from discrimination in the work place and in daily life.
Instead of becoming a society where the rich cultures of Hispanics and Latinos are shared with other cultures in America, too much of the country remains segregated where Hispanics, Latinos and Mexican-Americans either choose to live or can only afford to live where the majority of their citizens are concentrated in parts of cities away from where Caucasians, African-Americans or other minorities live. There are many causes of discrimination, all of which are idiotic, but the less interaction different cultures have, the more likely it is there will be discrimination by those who do not relate to each other.
Studies have found that nearly three in every ten Hispanic workers feel they have been discriminated against in their employment. Some report being referred to with racial slurs at work while one in four feel they are paid less and have reduced career advancement prospects than their Caucasian counterparts. In many organizations, there is a scarcity of Hispanics, Latinos and Mexican-Americans in management positions.
FBI statistics show a dramatic increase in anti-Hispanic hate crimes. And sadly, hate groups are increasing due to anti-illegal immigration concerns.
One would have thought that as a result of this situation, that there would be a flood of civil rights advocates and anti-discrimination lawyers fighting for the rights of Hispanics, Latinos and Mexican-Americans. Yet, that is not the case.
A symbol of discrimination to many Hispanics, Latinos and Mexican-Americans is the construction of the U.S.-Mexico border fence which is actually several separation barriers designed to prevent illegal movement of goods and people across the U.S. and Mexico border.
The U.S.- Mexico border fence is reportedly nearing completion as this article is being written in March 2009. While much of the purported reasoning for the multi-billion dollar fence was based on preventing the entry of terrorists into the country, many feel that reasoning is flawed while our border with Canada remains open. While the efforts have also been aimed at stopping the flow of drugs into the U.S. a secondary effort is to prevent the flow of weapons bought in the U.S. and smuggled into Mexico.
Homeland Security Secretary Janet Napolitano has said that even the fence will not stop illegal immigration along the border with Mexico, although it may help prevent those who are crossing illegally from blending immediately into some town populations. However, the fence is not continuous and where there are gaps, surveillance technology must be utilized. And then, there remains the fear that tunnels will be used even more extensively than in the past.
Over forty tunnels have been found since 2001 and some have been extremely sophisticated. One such tunnel from Tijuana to San Diego was half a mile long, sixty to eighty feet deep, and eight feet tall. It had drainage, electricity and a concrete floor, and its entrance from the California side was in a modern warehouse. The entrance to the tunnel in Mexico was in another building.
It should be noted that the border with Mexico is 1,951 miles in length. The fence that is reportedly nearing completion was only completed for approximately 600 miles in February 2009, when news reports came out that the fence was nearly finished.
As a result of the construction of the barrier, there has now been an increase in the number of people trying to cross in such areas as the Sonoran Desert and over the Baboquivari Mountain in Arizona where no fence exists. This requires crossing 50 miles of inhospitable terrain to reach the Tohono O’odham Indian Reservation, which many fear may lead to an increase in migrant deaths along the U.S.-Mexico border if the smugglers try these more difficult routes.
In the last thirteen years, there have been around five thousand migrant deaths along the border. The U.S. Border Patrol Tucson Sector reported on October 15, 2008 that its agents saved 443 illegal aliens from almost certain death after being abandoned by their smugglers. Without the efforts of these border patrol agents, many more deaths would have occurred and may occur in the future.
The U.S.-Mexico border fence has been controversial, to say the least, since its inception. It has been condemned by the government of Mexico and opposed by many in the U.S. as well. Tribal lands of three American Indian Nations will be divided by the border fence and the campus of the University of Texas at Brownville will be divided into two parts according to a vice president of the university. A section of the barrier was even mistakenly built inside Mexican territory requiring its removal and rebuilding at a cost of over three million dollars.
Visit our website at http://www.CaliforniaAttorneysLawyers.com and call us if you have been the victim of discrimination toward Hispanics, Latinos or Mexican-Americans.
There is no excuse for discrimination in America. If you have been the victim of discrimination against Hispanics, Latinos or Mexican-Americans, call California Civil Rights Lawyer Sebastian Gibson for a consultation.
July 11th, 2009 at 08:55pm
Under Civil Rights Law
Jim Crow and Civil Rights in North Carolina
Segregation shaped black-white interactions in the post-Civil War North Carolina, where it reigned from the white supremacy revolt of 1898 until the 1960s. Jim Crow period was a crucial phase of race relations in American society. However, racial segregation had far deeper roots in the North Carolina past. Before the Civil War, slaveholders needed few regulations to isolate slaves and free people of color, who were kept apart by custom. After the Civil War, a white backlash against the former slaves began to legalize the customary distance between blacks and whites.
Planters intended to defy the emancipation guaranteed by the Thirteenth Amendment and exploit ex-slave workers. White employers flogged and even killed freed people who dared to assert their new liberties, even in the face of Union garrisons and Republican authority. While the state constitution of 1868 confirmed abolition and legitimated previous black and mixed-race births, it plainly stated that Black children and white children should study in different public schools (Franklin 73).
Despite the presence of federal and state militias, the Ku Klux Klan terrorized Republican voters and officeholders, black and white. In 1870, when conservative Democrats regained a legislative majority, Klansmen murdered 16 Republicans and whipped at least 121 (Franklin 88). An act of 1874 proclaimed that no white child could be apprenticed to a black adult. The amended state constitution in 1875 prohibited between white people and African-Americans and it reiterated the requirement for dual schools (Evans 55). The legislature soon established industrial and normal colleges for blacks, but it ignored the terror that drove thousands of them to Kansas and Indiana in 1879-80.
Blacks continued to vote and hold office in much of eastern North Carolina, backing “the Party of Lincoln” despite facing dangerous opposition (Anderson 37). For instance, between 1868 and 1889, fourteen black Republicans were elected to seventeen state house and six state senate terms from New Hanover County, home of Wilmington (Evans 54). Between 1874 and 1890, three blacks also won terms in Congress from the Second Congressional District, “a Republican and black stronghold.” (Anderson 34).
Legislators in 1892 proposed to segregate railway travel, as eight other Southern states already had done. Republican and Populist assemblymen opposed the enabling bill.
Oppression increased as black North Carolinians persevered. Their votes enabled Fusion men to gain 74 of the 120 General Assembly seats in 1894 and win the governorship in 1896, while electoral reforms passed by the Fusionist legislature helped blacks to regain numerous local offices (Anderson 93). By 1897, in Wilmington, four aldermen, an audit board member, a justice of the peace, the deputy clerk of court, and the coroner were black (Edmonds 162). Clearly, 1898 marked a turning point in Jim Crow. The election that year brought into relief not only extreme white racism, but also fallout from the legal disfranchisement of blacks in South Carolina (1895) and the Supreme Court’s “separate but equal” decision in Plessy v. Ferguson ( 1896) (Edmonds 165). Klansmen and White Supremacy Clubs frequently demonstrated at black and Fusion rallies, intimidating the crowds by a show of guns. In 1897-99 seven lynchings were reported in North Carolina, and racial intimidation and terrorism reached into even the most remote crossroads and towns during the fall of 1898 (Evans 87). Democrats reclaimed five of the state’s nine congressional seats; Republicans retained three seats, reelecting the nation’s only black congressman, George H. White, from the Second District (Evans 88). In state contests Democrats took ninety-four house and forty senate seats to the Republicans’ twenty-three (four black) and seven (one black) and Populists’ three and three (Evans 95).
During the Wilmington Race Riot of 1898 legally selected Republicans were overthrown by white Democrats. As the result, Democrats established the government which was based upon white supremacy (Wilmington Race Riot 1). It symbolized the creation of a codified and brutal color line, one that would last through the first half of the twentieth century.
In 1899 lawmakers adopted voting restrictions based on the Louisiana model of a literacy test, poll tax, and grandfather clause. Scheduled for a referendum in 1900, the suffrage amendment promised significant reduction of the black electorate, thereby undermining a multiracial or working-class challenge to Democratic and white dominance. Adult illiteracy then was 40 percent for black males, compared to 20 percent for white males (Edmonds 180). Registrars did not expect or permit black men to read and explain a section of the state constitution as specified in the amendment. Nor could most blacks afford to pay poll taxes, for they earned only subsistence incomes. Virtually none had grandfathers who voted prior to January 1867, so, as descendants of freedmen, they lost by fiat the protection given to illiterate white men.
The assault on democratic citizenship quickened. At least two acts proscribed racially mixed fraternal orders and mental hospitals; five empowered the utilities commission to enforce Jim Crow in transport. In 1900 black leaders issued “An Address to the White People of North Carolina” protesting the imminent passage of the constitutional amendment that would disfranchise blacks (Edmonds 195).
Legal separation proceeded apace. The state required the board of education to operate all-black school districts and dictated that school librarians “fit up and maintain a separate place for the use of the colored people who may come to the library.” (Jim Crow Laws, Libraries). One statute allowed for relief and pension benefits to “fire companies composed exclusively of colored men.” (Edmonds 199). Furthermore, a “person of negro descent to the third generation, inclusive” was defined as black (Jim Craw Laws, Intermarriage). Any officer who failed to confine black and white prisoners separately should be considered guilty, according to an order on prisons. Three orders similarly charged operators of streetcars and trains.
The legal and informal contours of Jim Crow covered a wide domain. The restrictions betrayed white fears of black-Indian cooperation, black educational progress and competition for jobs, interracial sex, and blacks’ political dissent. To wit, the state reordered the segregation of Indians in jails, homes of the aged, and hospitals. It warranted a curriculum of only “practical agriculture and the mechanical arts and such branches of learning as relate thereto” for black colleges (Murray 332). Toilets had to be “lettered and marked in a distinct manner, so as to furnish separate facilities for white males, white females, colored males and colored females.” (Murray 339). Indeed, by the eve of World War I, almost every visible space had been separated. During the war, the state stopped the “organization of colored troops . . . where white troops are available, and while permitted to be organized, colored troops shall be under the command of white officers.” (Murray 342). Even a breach of the color line among convicts meant a fine or jail sentence for their jailers.
A sample of legislative acts from 1917 to 1945 can be useful to suggest the vagaries of Jim Crow. Of sixty-one Jim Crow statutes enacted in that period, three concern black aliens (Anderson 90). Education is the subject of nineteen, including a 1935 stipulation that “books shall not be interchangeable between the white and colored schools, but should continue to be used by the race first using them.” (Murray 331) An act detailing punishment for violations of the toilet restriction applies to all categories of labor. Seventeen measures relate to provisions for the handicapped, and fifteen cover buses and trains (Murray 338). Not until 1947 did the state restrict cemeteries, which had long been separated by tradition.
State permission to segregate the races resonated locally. Cities and towns tended to replicate the Winston-Salem housing pattern. Winston-Salem’s black residents had been segregated overwhelmingly into its southeastern corner by the 1920s. Black population clusters, always cordoned off by a main street, railroad track, or similar fixed barrier, shaped the social geography of every city and town. Hayti in Durham and Gilmer in Greensboro typified the urban ghettos (Woofter 67). In their segregated communities, veiled from white society, blacks forged a world of aspiration (Woofter 79).
Ordinances on accommodations (restaurants, theaters) and common spaces (auditoriums, stadiums) multiplied greatly. Lest there be trespassing, “White Only” and “Colored” signs policed entrances, exits, and seats. Banks, railroads, textile and tobacco factories, and other places of employment regularly exceeded statutory requirements. Tobacco plants in Durham, Reidsville, and Winston-Salem assigned “Negro and white workers to separate parts of buildings, or to different workrooms even when performing the same tasks, or to separate sides of the same room, or even to separate rows in the same room.” (Woofter 100).
Many African Americans struggled against Jim Crow laws and promoted dignity and liberty of Black people. For example, Charlotte Hawkins Brown whose grandparents were slaves made substantial contribution to the development of African American education and established the North Carolina State Federation of Negro Women’s Club (Charlotte Hawkins Brown Museum 1).
The other examples include Murray and Mebane who were emblematic of the black men and women who survived Jim Crow and struggled for protection of African-American civil rights. In 1938 the University of North Carolina denied Pauli Murray admission for graduate study. Two years later at Petersburg, Virginia, she was arrested for sitting in the front seat of an interstate bus.
Blacks such as Murray and Mebane responded to Jim Crow by pursuing an array of community-building activities to soften segregation’s harshest edges and build autonomy and self-respect. Within “autonomous institutions”–including the family, education, religion, cultural expression, labor, business, and politics–blacks built a sense of hope. Consider post-riot Wilmington: by 1930 institutions within the black community included one of five hospitals in the city, two of thirteen homes for the elderly, two of nine cemeteries, twenty-eight of fifty-two churches and four of fourteen public schools (Wilmington Directory 700).
Black colleges and universities which were founded after the Civil War contributed substantially to black North Carolina education. There are eleven Black higher institutions in North Carolina (Historically Black Colleges and Universities 1). Among them are Bennett College, Barberia-Scottia College, North Carolina A&T State University and others. These colleges also cultivated ambition and self-esteem in their students.
In 1960 a group of Black students from North Carolina A&T University was not served during lunch; they protested against such discrimination by their refusal to leave the lunch counter. The Greensboro sit-ins were started by four African-American activists such as Ezell Blair, David Richmond, Joseph McNeil and Franklin McLain (Greensboro sit-ins, Timeline, 1). This non-violent protest has continued to take place in many cities. Thus, within the period of two months the lunch counter sit-ins took place in 54 cities in 9 states (Greensboro sit-ins, Timeline, 2). Later the Student Non-Violent Coordinating Committee (SNCC) was organized to support Sit-Ins (Six Years of the SNCC 2).
Thus, Black activists participated in college boycotts and other forms of nonviolent direct action, helping to catalyze the emergent civil rights movement in North Carolina. Their fight on the home front to abolish Jim Crow bequeathed a significant legacy of hope to the next generation. Due to the courage and high aspirations of those Black Carolinians of the post-Civil War Era, African-Americans in North Carolina can enjoy civil rights and liberties which they have today. Individuals on both sides of the color line started to take each other seriously, with neither preordained stereotypes nor false etiquette.
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