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Court of Appeal:
Gene Kelly’s Widow Justifiably Sanctioned
Major Issues in Action to Oust Her As Trustee, Surcharge Her, Await Adjudication
By a MetNews Staff Writer
The Court of Appeal for this district has resolved a minor dispute in ongoing litigation between the widow of dancer/actor/choreographer Gene Kelly and the Hollywood luminary’s three children from previous marriages who contend that their step-mother is making unauthorized commercial use of the name and likeness of her late husband in competition with a trust, in which they hold interests, that owns those rights.
Although the unpublished opinion by Justice Luis Lavin of Div. Three, filed Thursday, deals with the mundane matter of a $6,300 discovery sanction, meaty issues await resolution in the Los Angeles Superior Court—and potentially in the appellate courts—as to the breadth of a Civil Code section that creates a cause of action in favor of those to whom a celebrity’s right of publicity has descended where that right is infringed.
The opinion affirms an order by Judge Daniel Juarez to the widow, Patricia Ward Kelly, to pay a sanction for moving, in the absence of “substantial justification,” for a protective order in a discovery dispute. The children—psychoanalyst Kerry Kelly Novick, born to Gene Kelly and his first wife, Betsy Blair, and Timothy J. Kelly and costume designer Bridget J. Kelly, whose mother was Gene Kelly’s second wife, choreographic assistant Jeanne Coyne—sought to discover communications between the widow and Warner Brothers.
MGM Star
Although Gene Kelly was not associated with that studio—instead being a major star at MGM, leading the cast in such 1950s MGM hit musicals as “Singin’ in the Rain,” “An American in Paris,” “Brigadoon,” and “Les Girl”—it is Warner Home Video that is distributing his films for home-entertainment purposes. The petitioners, who are seeking the ouster of their step-mother as trustee of the Eugene C. Kelly Image Trust, which owns their father’s publicity rights, sought communications as to such matters as efforts by Patricia Kelly to obtain film clips—she stages a one-woman show, “An Evening with Mrs. Gene Kelly”—or payments by Warner Brothers to her.
The offspring seek an accounting and to have their step-mother surcharged. They maintain that in setting up “The Gene Kelly Legacy, Inc.” in 2011, she embarked on competition with the trust, sapping revenues from it.
Gene Kelly and Patricia Ward wed in 1990; she was 31, he was 78. On Feb. 2, 1996, Gene Kelly died.
Juarez held that there was no demonstrated basis for a protective order and imposed the sanction. His order denying a protective order was not appealable; the widow sought a writ; Div. Three summarily denied her petition on Oct. 22, 2020.
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—AP Above are Gene Kelly and wife Patricia Ward Kelly in an undated photo. Kelly died in 1996. His children from previous marriages are petitioning to have the widow removed as trustee of a trust that owns rights to their father’s right of publicity, charging that she is competing with the trust through her commercial use of his name and likeness. |
Evidence Lacking
The sanction was, by statute, appealable given that the amount exceeded $5,000. In his opinion affirming the appealed sanction, Lavin declared that “there was no evidence before the court that explained Mrs. Kelly’s relationship with The Gene Kelly Legacy, Inc. entity, her role in administering the Image Trust, or that supported her contention that The Gene Kelly Legacy, Inc. did not compete with the Image Trust.”
He found the amount of the sanction—based on 14 hours expended by the petitioners’ lawyers in opposing the motion for a protective order, at a rate of $450 per hour—was reasonable.
The case is Estate of Kelly, B307908.
Henry L. Self III and Dilan A. Esper of the Beverly Hills firm of Harder LLP represented the widow while John A. Marshall and Rodger C. Jensen of the Calabasas firm of Marshall & Associates argued for affirmance.
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Gene Kelly is seen dancing and singing the title tune in the 1952 MGM musical, “Singin’ in the Rain.” |
First Amendment Issue
Yet to be determined in the trial court, and possibly in appeals, is Patricia Kelly’s contention that her First Amendment right to talk about her late husband, even if a charge is made for admittance to her performances or for DVDs, trumps Civil Code §3344.1(a)(1)’s bar on unauthorized commercial use of a deceased celebrity’s identity.
On Dec. 14 of last year, Juarez, in denying respondent Patricia Ward Kelly’s motion for summary judgment/adjudication, alluded to a 2012 recording of a performance by the widow titled “Gene Kelly: The Legacy from 2012.” He declared:
“Approximately 75 minutes of this 169-minute performance (44 percent) consists of clips of Decedent’s performances while the other 94 minutes consists of Respondent and guests speaking about Decedent. Petitioners argue the marketability and economic value of these performances derives primarily from the fame of Gene Kelly and not Respondent’s skills as an extemporaneous speaker. Respondent has failed to demonstrate that her performances, as a matter of law, are sufficiently transformative to warrant First Amendment protection: as the 2012 performance is almost 50 percent untransformed clips of Decedent’s performances, the Court finds this to be a heavily factual inquiry. Thus, this issue remains a triable issue of material fact.”
The widow argued that the action against her, brought on Nov. 13, 2017, is time-barred, contending that the petitioners knew or should have been cognizant of her activities in publicly spotlighting Gene Kelly’s career since 2011, when Gene Kelly Legacy, Inc. was incorporated, or at least since 2012 when she began widely advertising her one-woman show.
Juarez said:
“Respondent’s evidence that the show was publicly advertised, and that the corporation was publicly registered in 2011 does not support only one reasonable conclusion that these facts were sufficient to put Petitioners on notice of the alleged wrongdoing of diversion of fluids from the trust in 2011. An alternate reasonable conclusion, despite the case law offered by Respondent, is that awareness of the show and the corporation is insufficient to put Petitioners on inquiry notice of the alleged diversion of trust funds in the absence of accountings.”
A hearing on the petition is slated for March 14.
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