Saturday, September 1, 2012
As I have previously discussed, the will of Beastie Boys' Singer Adam Yauch attempted to restrict the rights of image and the use of his music in advertising. Now, comedian and TV star Bill Cosby is trying to restrict the rights to use image through the Massachusetts legislature. According to BrowBeat Blog, Cosby would like to "protect his brand and prevent his likeness from being used after his death to promote causes and products he does not support." The state law will increase the publicity rights of a celebrity for a few decades after the person's death. With this type of bill, currently passing to the House Committee that controls these matters, a question about a person's image comes into being. If the state legislature can prohibit the use of Cosby's and other celebrities' images, then will these images ever move into public domain?
The answer here is yes, however, it will only arise under a few circumstances. The likeness of a celebrity is governed by trademark law. The trademark protects a person's image as long as the person uses the trademark. If the person does not use the trademark for more than two years, the image or likeness moves into the public domain, but there are also limitations on trademarks. For example, an estate does not necessarily hold the trademark to a celebrities' image. In a case involving Babe Ruth, the Second Circuit Court of Appeals ruled that because a calender company used the Babe's image repeatedly in its calenders it might also own a trademark on the image. There is another issue that is present in this type of case and that is ownership over the "right of publicity." This right "protects distinct personalities." The problem for people like Cosby is that only a few states own these laws and they vary from state to state.
See Aisha Harris, Can a Person's Identity Enter the Public Domain?, browbeat, Aug. 22, 2012.
Special Thanks to Margaret Ryznar (Associate Professor of Law, Indiana University Robert H. McKinney School of Law) for bringing this article to my attention.