Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, May 8, 2013

Article on Post-Mortem Publicity Rights

Alyssa MervynAlyssa A. Mervyn (Legal Intern, TV Production, Legal Affairs, NBC Universal) recently published an article entitled, The Marilyn Monroe Effect: The Postmortem Right of Publicity's Property Interests Must Survive a Personality's Death in Jurisdictions Worldwide, 19 Sw. J. Int'l L. 181 (2012). Provided below is the introduction to her article:

Think of a celebrity you are very fond of, perhaps your “favorite of all time.” This celebrity can be dead or alive, but if you picked a living one, you must imagine that he or she is now dead. Got it? Now think of why you like this celebrity. Likely, it is because of his or her body of work, creativity, type of character, or maybe it is just that he or she is really wonderful to look at. Do you think that just because that person is now dead just anyone should be able to immediately exploit your favorite celebrity for his personal economic gain, when all they did was slap your celebrity’s face on a t-shirt? Don’t you think your celebrity and his or her family are worthy of controlling whoever uses that famous face?

To illustrate this point, consider Michael Jackson, a celebrity who is now dead but remains widely popular. Jackson still had a lot of potential at the time of his unexpected death--with millions of dedicated fans, an upcoming concert tour, and new music to exhibit to the world. Basically, he was still a moneymaking machine. He used his talent, name, image and other attributes to make a living. Those physical attributes are his property, which he used to support himself and his family.

According to the laws of property, Jackson’s death meant that his family inherited his property, among other things. Why should Jackson’s property rights in his personality be fair game for all to exploit immediately upon his death? In other words, is it equitable for someone to put Jackson’s face on a t-shirt and sell it for personal profit without first talking to his family? Shouldn’t what happens to Jackson’s property be within his family’s control? Unauthorized exploiters were not able to use him like that while he was alive and should not be allowed to do so immediately after his death. The problem is that not every jurisdiction agrees that there should be this postmortem protection. Marilyn Monroe, perhaps one of the most recognized American actresses of all time, has not been ensured a postmortem right of publicity because it is unclear which state was her primary residence - New York, which does not recognize the right, or California, which does.

The right that the United States has named the “right of publicity” was first recognized as the ability “to control and profit from the publicity values which [a personality] has created or purchased.” Elements of the right of publicity include a personality’s image, name and likeness. For purposes of this Comment, these elements will be referred to collectively as “identity.” This right exists in property law for persons who can exhibit creativity and commercial value in their identity. Further, “[h]uman rights protections for those who do creative work date from the beginning of the international human rights movement.” Despite the lack of uniformity in the protection of those elements, the right of publicity certainly exists in some form in almost every jurisdiction.

This Comment will focus solely on the application of this right with respect to “personalities”--who are people with recognition value. “Recognition value” means that an individual’s identity is recognized by the public--like a celebrity. This value is why businesses in countries worldwide want to use personalities to advertise. A celebrity’s recognition value brings in business. This practice started over a hundred years ago with the French actress Sarah Bernhardt, German Count Zeppelin and the American inventor Thomas A. Edison. Today we see the practice in television commercials, billboards and magazines--like Queen Latifah for CoverGirl, Heidi Klum for Dannon Light & Fit, Michael Phelps for Kellogg’s Corn Flakes and Jennifer Aniston for Smart Water. A right flows from this use because personalities should have the right to control how they are exploited by choosing for themselves whether to enter into deals to license their identity. This seems logical, but there remains a widely debated part of the issue--whether the right of publicity should be protected after death--but this is logically solved too.

The extension of the right of publicity into death continues to be evaluated in jurisdictions throughout the world, but is only sporadically protected. The right of publicity itself is a complicated issue surrounded by varying beliefs in whether the right is based in privacy and tort, or property. “Rights in law typically have one of two aims: to enable individuals to advance their interests as they see them, or to protect them from harm.” Since the right of publicity concerns the former, the right can only be protected by recognizing that it is based in property. 

This Comment argues that the right of publicity is fundamentally a property right and logically extends postmortem. Section II defines the right of publicity and the postmortem right of publicity and evaluates how various jurisdictions are protecting, denying or not yet deciding the issue of postmortem extension. Section III argues that although part of the right of publicity is based in privacy law, it is also a property right that deserves postmortem protection. Section IV argues that jurisdictions worldwide are beginning to recognize the right of publicity in property, such that postmortem protection is the next logical step. This Comment concludes that since the right of publicity is based in property, it must and equitably should be recognized to survive a personality’s death.


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