Post-Mortem Rights of Publicity

By June Q.

   Should the reanimation of a deceased actor be subject to the post-mortem right of publicity? Imagine a high quality reanimated replica of Heath Ledger starring in a new motion picture alongside live actors. Some may think it’s cool. Some may think it’s creepy.

   The right of publicity is not a federal right. It is a right protected by state law that varies in its existence and scope from state to state  The right of publicity protects identity including name, likeness, appearance/image, voice, performance, and signature.

   The post-mortem right of publicity, also known as descendible rights, varies greatly from jurisdiction to jurisdiction. The states that have passed statutes concerning a post-mortem right of publicity are California, Florida, Kentucky, Nebraska, Nevada, Oklahoma, Tennessee, Texas, and Virginia.  Some other states either in state or federal court have expressly interpreted the state’s common law to include a post-mortem right of publicity are Arizona, Georgia, New Jersey, and Utah. States that include the right of publicity as a common law property right are Michigan, Missouri, Oregon, and Wisconsin.  On the other hand, Illinois, New York, Ohio, and Pennsylvania specifically preclude a post-mortem right of publicity as a matter of statute or common law. The other states have neither had the issue brought before the court nor adopted statutes specifically addressing post-mortem rights of publicity.  Without a federal post-mortem right of publicity, the variations from jurisdiction to jurisdiction make the issue of descendible publicity rights difficult to standardize.

   In Lugosi v. Universal Pictures, 603 P. 2d 425 (Cal. 1979), Universal licensed Lugosi’s name and image on merchandise and the heirs of Bela Lugosi sued to enjoin and recover profits. The California Supreme Court held that the right to exploit Lugosi’s name and likeness belongs to Lugosi and his estate. This holding spurred legislation aimed toward creating a statutory descendible right to publicity aka post mortem right of publicity in California, Florida, Kentucky, Nebraska, Nevada, Oklahoma, Tennessee, Texas and Virginia.In California, under the California Civil Code § 990, the post-mortem right of publicity terminates at the end of 50 years after the death of the celebrity. The California post-mortem rights are seen as property rights that are freely transferable. If there is no explicit transfer of this right, it automatically goes to the intestate heirs of the deceased. If there are no intestate heirs, then the right of publicity terminates with the celebrity’s death. To preserve First Amendment protections of creative works, section n exempts from liability plays, books, magazines, newspapers, musical compositions, films, and radio and television shows. Section 990 only applies to unauthorized “merchandise, advertisements, and endorsement.” Thus, a clear attempt to exploit the deceased celebrity’s fame is not protected by the First Amendment.

   In 1999, “The Astaire Bill” was passed that eliminated the exceptions which made it much more difficult to use a deceased celebrity’s likeness without consent from the heirs. The bill also extended the right from 50 years to 70 years.

   The duration of descendible rights varies across the states.  In a particular case it may really be difficult to determine where the deceased’s rights were violated. A federal post-mortem right of publicity would solve this problem.

   In terms of protecting voice, according to case precedent,  for a voice to be protected against imitation (by human or synthesizer), it must be distinctive and not ordinary. In Midler v. Ford Motor Co., the 9^th circuit protected Bette Midler from Ford’s attempt to impersonate her voice in an advertisement. The case held that “when a distinctive voice of a professional singer is widely known and is deliberately imitated to sell a product, the sellers have appropriated what is not theirs.”

   For likeness, based on case precedent, it is highly unlikely that a court would not find a computer generated image to be a “likeness” of the deceased actor. In a look-a-like case, Onassis v. Christian Dior, Dior developed an ad campaign featuring 3 imaginary Diors. One of them was a female look-a-like of Jackie Kennedy Onassis. The court held that it was an unlicensed use of her likeness.

   Is the unlicensed reanimation of a deceased actor in a port-mortem production proscribed by existing post-mortem statutes and common law? The Midler court stated that if the reanimation is “informative or cultural” then the use should be exempt from the post-mortem right of publicity. But if the use is merely “exploitative” or merely to attract attention, then there should be more careful analysis. No state has addressed the issue of reanimation yet. Again, for uniformity and predictability, there should be a uniform law or a federal right of publicity.

   Reanimation of deceased celebrity’s is in the very early stages of development, however, there is already controversy. Some believe selling reanimation rights is a display of wanton greed from those who own the deceased celebrity’s rights. The deceased celebrity does not get a say in the types of projects they are used for after their death. Some say it is a desecration of the actor’s art and is like grave robbery. If subject to the post mortem right of publicity, then the labors of the celebrity during his or her life will go to the heirs after death. Chief Justice Bird said “if the right is descendible, the individual is able to transfer the benefits of his labor to his immediate successors and is assured that control over the exercise of the right can be vested in a suitable beneficiary…the financial benefits of that labor should go to the celebrity’s heirs.” If reanimation is not included in the post-mortem right of publicity, the actor may be deprived of income during his lifetime because he will not receive the benefits of a project if a future advertiser can use his replica without a contractual obligation to the actor. Also, when protected by the post-mortem right of publicity, an actor has the power to put his talent and celebrity image to rest after death if he or she wishes to do so.