The right of publicity — the legal doctrine that protects the right of celebrities to control and profit from their names, likenesses, and other aspects of their identities — is a familiar topic here at Law Law Land. But it can be a more complicated subject than we sometimes give it credit for. Unlike copyright and trademark law, which are (mostly) defined by federal statutes that provide for consistent nationwide rules, the right of publicity is exclusively a creature of state law. And, thanks to the patchwork of inconsistent and often confusing state laws that have evolved over the years (with heavy influence and lobbying from the heirs of particularly valuable/merchandisable celebrities, like Elvis Presley and Albert Einstein), its application to the dearly departed can get pretty quirky. For example:
Are you a celebrity who died as a California resident? Great — your heirs can exclusively exploit your name and likeness for another 70 years! Oh, were you actually a New York resident when you died? Just kidding, then, your heirs are totally out of luck, and unauthorized t-shirts with your face will be hitting stores shortly. That is, unless, your heirs sue in Washington or Indiana, which purport to apply their right of publicity laws to any individual, regardless of whether the celebrity’s state of domicile recognizes the right. Unless, of course, the federal courts decide that those laws are unconstitutional (a conclusion reached by a Washington district court in a 2011 case involving Jimi Hendrix; the Ninth Circuit will be making its own ruling soon). And even among those states that expressly recognize a post-mortem right of publicity, there is broad disagreement about the length of protection afforded, the retroactivity of the statutes, and a whole host of other issues. Got it? Don’t worry, nobody else does either.
Just ask the lawyers for the estate of Marilyn Monroe, whose recent unsuccessful right of publicity lawsuit could be “Exhibit A” in renewed effort to enact a federal right of publicity law.