Article on Post-Mortem Publicity Rights
Think of a celebrity youare very fond of, perhaps your “favorite of all time.” This celebrity can bedead or alive, but if you picked a living one, you must imagine that he or sheis now dead. Got it? Now think of why you like this celebrity. Likely, it isbecause of his or her body of work, creativity, type of character, or maybe itis just that he or she is really wonderful to look at. Do you think that justbecause that person is now dead just anyone should be able to immediatelyexploit your favorite celebrity for his personal economic gain, when all theydid was slap your celebrity’s face on a t-shirt? Don’t you think your celebrityand his or her family are worthy of controlling whoever uses that famous face?
To illustrate this point, consider Michael Jackson, a celebrity who isnow dead but remains widely popular. Jackson still had a lot of potential atthe time of his unexpected death–with millions of dedicated fans, an upcomingconcert tour, and new music to exhibit to the world. Basically, he was still amoneymaking machine. He used his talent, name, image and other attributes tomake a living. Those physical attributes are his property, which he used tosupport himself and his family.
According to the laws of property, Jackson’s death meant that his familyinherited his property, among other things. Why should Jackson’s property rights in his personality befair game for all to exploit immediately upon his death? In other words, is itequitable for someone to put Jackson’s face on a t-shirt and sell it forpersonal profit without first talking to his family? Shouldn’t what happens toJackson’s property be within his family’s control? Unauthorized exploiters were not able to use him like thatwhile he was alive and should not be allowed to do so immediately after hisdeath. The problem is that not every jurisdiction agrees that there should bethis postmortem protection. Marilyn Monroe, perhaps one of the most recognizedAmerican actresses of all time, has not been ensured a postmortem right ofpublicity because it is unclear which state was her primaryresidence – New York, which does not recognize the right, or California, whichdoes.
The right that the United States has named the “right of publicity” was first recognized as the ability “to control and profitfrom the publicity values which [a personality] has created or purchased.” Elements of the right of publicity include a personality’simage, name and likeness. For purposes of this Comment, these elements will bereferred to collectively as “identity.” This right exists in property law forpersons who can exhibit creativity and commercial value in their identity.Further, “[h]uman rights protections for those who do creative work date fromthe beginning of the international human rights movement.” Despite the lack of uniformity in the protection of thoseelements, the right of publicity certainly exists in some form in almost everyjurisdiction.
This Comment will focus solely on the application of this right withrespect to “personalities”–who are people with recognition value. “Recognition value”means that an individual’s identity is recognized by the public–like acelebrity. This value is why businesses in countries worldwide want to usepersonalities to advertise. A celebrity’s recognition value brings in business. Thispractice started over a hundred years ago with the French actress SarahBernhardt, 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 forDannon Light & Fit, Michael Phelps for Kellogg’s Corn Flakes and JenniferAniston for Smart Water. A right flows from this use because personalitiesshould have the right to control how they are exploited by choosing forthemselves whether to enter into deals to license their identity. This seemslogical, but there remains a widely debated part of the issue–whether the rightof publicity should be protected after death–but this is logically solved too.
The extension of the right of publicity into death continues to beevaluated in jurisdictions throughout the world, but is only sporadically protected.The right of publicity itself is a complicated issue surrounded by varyingbeliefs in whether the right is based in privacy and tort, or property. “Rightsin law typically have one of two aims: to enable individuals to advance theirinterests as they see them, or to protect them from harm.” Since the right of publicity concerns the former, theright can only be protected by recognizing that it is based in property.
This Comment argues that the right of publicity is fundamentally aproperty right and logically extends postmortem. Section II defines the rightof publicity and the postmortem right of publicity and evaluates how variousjurisdictions are protecting, denying or not yet deciding the issue ofpostmortem extension. Section III argues that although part of the right ofpublicity is based in privacy law, it is also a property right that deservespostmortem protection. Section IV argues that jurisdictions worldwide arebeginning to recognize the right of publicity in property, such that postmortemprotection is the next logical step. This Comment concludes that since theright of publicity is based in property, it must and equitably should berecognized to survive a personality’s death.