Postmortem Right of Publicity

While we think of people like Rosa Parks, Albert Einstein, Babe Ruth, and Martin Luther King Jr. as part of our cultural heritage, available for everyone to use, each of their identities are claimed as private property usable only after receiving permission and paying a fee.

For most of history, a person’s identity could not be owned. Beginning in 1953, we began construing identity as a property interest, known as the right of publicity, that could be licensed or sold. The right of publicity allows people to control the use of their images and names during their lives. The right of publicity after death is governed by state laws, which vary remarkably. While the right of publicity ends at death in some states, other states allow control to be secured for a certain amount of years, and others allow eternal control.

All the differing state laws have resulted in uncertainty regarding what is privately owned under the right of publicity. There has been much recent litigation over the right of publicity, but nothing has been clarified on a national level. “Congress should step in and enact a federal right of publicity. In doing so, it should establish clear First Amendment protections and set forth a relatively short term for the right of publicity to survive death (perhaps 10 years). Most important, the law should provide a mechanism that allows people to opt out of marketing their identities after death. After all, sometimes the dead should be allowed to simply rest in peace. “

Ray D. Madoff, The New Grave Robbers, N.Y. Times, Mar. 27, 2011.