Publicity Rights Of Dead People: Courtney Love Threatens Activision Over Kurt Cobain In Guitar Hero

from the welcome-to-the-digital-world dept

While we often talk about copyright, patents and trademarks as "intellectual property" (a misnomer, of course) there are some other related areas as well. One that has been growing in importance is the idea of "publicity rights" as a separate "right." The issue, of course, is usually about whether a company can use the likeness of someone for commercial purposes without their permission. But that issue is getting more and more complicated as technology gets better and better. In the last few decades, for example, there's been a growing trend to use famous dead people, such as John Wayne, Lucille Ball and Fred Astaire in commercials. But those mostly involved taking clips of those actors from existing films/TV and splicing them into a commercial (with permission from their estates). However, as some lawyers have been noting, with better and better digital technologies, this issue is becoming more important as it's now possible to digitally recreate someone for the purpose of film. Or, say, a video game. Apparently in Guitar Hero 5, singer Kurt Cobain has been... well... reanimated, and some find it rather distasteful (especially since he sings a bunch of songs you wouldn't expect him to sing).

Among those most upset? Cobain's widow, Courtney Love, who is threatening to sue Activision for breach of contract. Since she's claiming it's a breach of contract issue, there are (obviously) plenty of questions over what's in the actual contract. Still, like with patents and copyright, there is plenty of concern about how far publicity rights extend. In the Law.com article above, it notes that publicity rights didn't used to apply to the deceased, but that's changed. More troubling?
Initially, the right covered only a person's name and likeness. But courts expanded the protected "persona" to cover a variety of elements. Bette Midler and Tom Waits were allowed to pursue claims against advertisers featuring singers using similar vocal styles. Vanna White and George Wendt were allowed to sue companies using robots evoking their roles as the letter-turner and barfly in "Wheel of Fortune" and "Cheers" respectively. Lothar Motschenbacher was allowed to claim damages based on an advertiser's use of a distinctively ornamented racing car.
That certainly reflects the expansion of copyright and patents -- beginning narrowly focused and then expanding over time. I can certainly understand the desire for a "publicity right," but I wonder if it's not better handled through other laws -- such as trademark, fraud and contract law, rather than creating separate boundaries for "publicity rights." I can understand why Love is upset about the use of Cobain's image, but at some point you have to wonder whether it really makes sense to limit such uses. As the technology gets better and better, the legal questions are only going to get more complicated -- and, once again, we're likely to see the reach of such rights extended, perhaps in ways that make little sense.


Reader Comments (rss)

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  1.  
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    Dark Helmet (profile), Sep 11th, 2009 @ 6:46am

    What I'd like to see....

    ...is Activision respond with an anonymously released patch in which, after Kurt croons his last song and takes a bow, digging up memories amonst many of us of our youth and his great music, we are shown a sequence in which he walks back stage and is attacked by C-Love, who is strung out and attacks him.

    Then, as she attempts to level a shotgun into Kurt's mouth, he slaps it away, does that Karate Kid crane kick to her abdomen, disarms her and promptly puts a shell of buckshot into her chest.

    The screen fades away with the words: "The Way It Should Have Been" and the player gets 10 gazillion points.

    RIP Kurt

     

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  2.  
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    Jrosen (profile), Sep 11th, 2009 @ 7:01am

    RE: what I'd like to see...

    LMFAO, very nice Helmet, very nice.

    And obviously the disease of idiocy is spreading. Given, from what little I've seen of little-miss Love over the years, she's not got that much intelligence to start with. I enjoyed Cobain's music far more than Love's at any given time.

    As to the whole chance of lawsuit, give me an f'ing break! Activision is honoring a musician by putting him in. While not all the music might have been his 'style', it's still good to see. Get your head out of your coked-up a$$ and try relaxing and just, I don't know.. ENJOYING the memory instead of tripping over it.

     

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  3.  
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    herodotus (profile), Sep 11th, 2009 @ 7:01am

    Dark Helmet FTW

    Why does she care? We all know she had him murdered.

    Oh, of course, it's subterfuge.

     

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  4.  
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    M. Night, Sep 11th, 2009 @ 7:22am

    I see...

    I see dead people.... in Guitar Hero...

     

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  5.  
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    Ima Fish (profile), Sep 11th, 2009 @ 7:27am

    I disagree with such publicity rights, but to continue them after death is simply asinine. Exactly how long will such a right last? In perpetuity?

     

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  6.  
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    interval, Sep 11th, 2009 @ 7:41am

    Re:

    Tom Grant is a crank and a media whore. Love, who arguably helped get him strung out actually did her best to get Cobain to rehab in the end. I'm not saying Love is an angel, but Grant's another conspiracy theory monger. There's always several in every media-heavy death. And they always have 50 different ways in which the big "mystery" occurred. All of 'em wrong.

     

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  7.  
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    Anonymous Coward, Sep 11th, 2009 @ 7:42am

    Cash grab by a no-talent hag whose fifteen minutes were up a couple of hours ago.

     

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  8.  
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    JAy., Sep 11th, 2009 @ 7:51am

    Does the US have to pay the descendents of Washinigton for each dollar bill printed? Do court reporters and criminal sketch artists have to pay to do drawings? For that matter, how much is Yahoo! paying to the Jacksons for the weekly updates on MJ's death.

    Give me a break on this "Publicity Rights" crap. If you live in the public eye, people are going to take and distribute pictures of you and some people will create likenesses of you. This will continue to circulate after your death (if you get famous enough).

    C. Love should be happy that people remember Cobain. She should be out showing respect for his memory. Yeah, the guy lead a troubled life, but he was a musical genius. And that music that he is portrayed as singing in the game that Love says wasn't his style? Odds are he had tried out similar sounds, played with them, and maybe incorporated some if them into his sound. That is how music, especially musical style, is created. Just because he didn't perform the songs in concert doesn't mean he didn't respect or even like them.

    Unless Love's contract (which probably was unnecessary, or should have been, to start with) specified that she got to approve the song list, she shouldn't have any grounds for breach. She is just trying to get money and publicity because people will remember Cobain long after she is completely forgotten. (Oh, wait, that may have already happened.)

     

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  9.  
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    Ima Fish (profile), Sep 11th, 2009 @ 7:52am

    Re:

    How dare you defame the no-talent hags of the world by comparing them to Courtney!

     

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  10.  
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    Dark Helmet (profile), Sep 11th, 2009 @ 7:52am

    Re: Re:

    "All of 'em wrong."

    As our resident conspiracy theorist, are you talking about conspiracies in general, or just media deaths? Because, whether you are someone who lends credence to such theories, examines them with only mild curiosity, or tends to dismiss them outright, why should thoughtful examination EVER be maligned (not that you necessarily did, but that appeared to be the tone).

    Also, a Kurt Cobain homocide by Courtney Love wouldn't technically be a conspiracy, since you need to have 2 or more people agree to engage in an unlawful act (unless you're talking about a media coverup, etc.).

     

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  11.  
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    Justin, Sep 11th, 2009 @ 7:56am

    Wouldn't this technically be like suing an Elvis impersonator for being too like Elvis? Or how about when a comedian impersonates a person.

     

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  12.  
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    Anonymous Coward, Sep 11th, 2009 @ 7:58am

    NOT A BREACH OF CONTRACT

    Just a funny addendum: The use of the image of Kirk Cobain was included in the contract **she signed** for Guitar Hero 5. They have full permission from the Cobain Estate!

     

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  13.  
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    Trails, Sep 11th, 2009 @ 8:14am

    Re: NOT A BREACH OF CONTRACT

    Well, Activision CLAIMS it has the rights.

    To be clear, it's not very informative. If they had the rights they would claim it. If they didn't have the rights, they would still claim it. We learn nothing from their statement.

    The demand from the peeved isn't that they remove Kurt's image, it's that they "lock" the avatar to only Nirvana songs.

    This strikes me as another bizarre moral panic over an attempt to control ideas. Hopefully this gets shot down pretty quick.

     

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  14.  
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    Xander C (profile), Sep 11th, 2009 @ 8:16am

    Just a 2c peice.

    It's been released that Ms. Love already signed a deal over to Activision for Cobain's likeness in a new GH. Most people will agree though that the following is true:

    1. Activision is legally in the right, but their "full-out" use of Cobain is in very poor taste.

    2. Ms. Love is using the backlash against Actvision to make herself relevant again. Even though it's her own fault this happened in the first place.

    I personally agree with most people though that, it would of been nice to see Cobain in his own setting, as we remember him, instead of the parade and specital that GH is notorious for overdoing. The people in Harmonix got the idea down pat with their Rockband: The Beetles since it's a well known group doing what they are known to do.

     

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  15.  
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    Anonymous Coward, Sep 11th, 2009 @ 8:21am

    Dead Celebrity Rights

    At least she's complaining about a contract breach, because otherwise there could be some serious doubt as to whether the late Mr. Cobain's likeness is even protectable. For instance, in New York, famous people have no so-called "publicity rights" (or "celebrity rights") once they're dead. Some states, notably California and Indiana, grant posthumous protection for famous people, but the Estate of the deceased needs to register and I believe there's a requirement that the deceased person had to actually be a legal resident of the state at the time of death, or possibly be buried in the state. Pretty sure that Kurt died in Washington and his ashes are scattered in multiple locations, but I have no idea where the Estates Love is talking about are located. One would need to do some more digging, but there's a good chance she has no claim whatsoever against Activision absent an existing contract to haggle over.

     

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  16.  
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    Dark Helmet (profile), Sep 11th, 2009 @ 8:22am

    I don't know why it took so long, but I reread the story and immediately had the visage of Dean Winchester in my head shouting, "What's dead should STAY dead!"

     

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  17.  
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    Valkor, Sep 11th, 2009 @ 8:31am

    Re: RE: what I'd like to see...

    "Courtney Love Does the Math" is the only decent thing I've ever heard from that gal. Everything else about her just makes me want to throw up in my mouth.

     

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  18.  
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    TheStupidOne, Sep 11th, 2009 @ 8:48am

    Re:

    only until nobody else is left alive that can make any claim ...

     

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  19.  
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    Mitch Featherston, Sep 11th, 2009 @ 9:11am

    Publicity Rights Insanity

    I firmly believe in publicity rights. My belief in the law is firm and sure, but with one little catch: once I die, I should not (nor my heirs) be able to control my "likeness" or general image. This is primarily a state-to-state issue in the United States. For example, in Tennessee, right of publicity lasts forever (no joke). In Georgia, my home state, the laws are very strong because of the MLK family pushing for it. Of course, in California, the laws are strong as well. Wouldn't want Bela Lugosi's likeness on a bottle of ketchup, would we?

    I'm not a lawyer, but it looks like we need some sort of Federal suit to determine the validity of this pathetic, patchwork type of intellectual property.

     

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  20.  
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    Anonymous Coward, Sep 11th, 2009 @ 9:29am

    Re: Re:

    Right... so you think the seventh generation of descendents of George Washington should have legal publicity rights to his likeness? Give me a break. This is like extending copyright of songs infinitely (oh wait, they are actually trying to make that happen...).

     

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  21.  
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    nullbull (profile), Sep 11th, 2009 @ 11:10am

    They made him look like a Calvin Klein model

    ... it's just wrong, man. Whoever thought it was a good idea to make a cartoon video character out of a guy who hated his own fame, struggled with drugs, and then gave a shotgun a blowjob... is an idiot.

    RIP Kurt, indeed

     

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  22.  
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    Anonymous Coward, Sep 11th, 2009 @ 11:32am

    "Tom Grant is a crank and a media whore. Love, who arguably helped get him strung out actually did her best to get Cobain to rehab in the end. I'm not saying Love is an angel, but Grant's another conspiracy theory monger. There's always several in every media-heavy death. "

    Have you actually read any of the evidence?

    Have you actually looked at the suicide note?


    I have never believed a single conspiracy theory I have read. Not Morrison, not King, not even Kennedy. But even if Grant is wrong as a whole, there is something definitely not right about the standard story of Curt's death. And the subsequent police investigation was as shoddy as any that Radley Balko has ever written up.

     

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  23.  
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    known coward, Sep 11th, 2009 @ 11:38am

    well

    does the hitler family get royalites for his guitar hero rendition of "my way". How bout mozart playing keyboards for inagoddadavita ?

    Where does it end??

     

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  24.  
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    DMNTD, Sep 11th, 2009 @ 12:25pm

    well..

    If Kurt did not want fame he should have stayed off of...well everything and never shown his face...or let someone else stand in for him. See here is a prime example of art and human use of it.

    He has no say and neither does anyone else about him "image" even though he looked like the guy that sleeps on the dirt down my street..hobo anyone? SO be offended by someones interpretation of his likeness, that's the point. Also love can longways walk off a short plank.

     

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  25.  
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    ASH, Sep 12th, 2009 @ 9:49am

    Publicity rights aren't an extension or expansion of copyrights, and they're not new. First of all, they're covered by state property laws, not federal law (copyright), so it's an entirely different area of jurisprudence.

    They also make perfect sense when you give the question any thought at all. In the Bette Midler case, for example, producers of a commercial were going to hire her to sing a song, and then at the last minute simply hired an imitator so they wouldn't have to pay her (and then didn't acknowledge it was an impersonator in the commercial). Without publicity rights, this would have been a perfectly acceptable practice.

    And, BTW, publicity rights persist after death because they're a property right that passes through the decedent's estate, to the heirs, like any other property right. Without that, people could take the person's likeness and slap it onto any cheap defective product and then sell it as if it was actually authorized by the person's estate. (Which still happens, obviously, though it's illegal.) In that respect, it protects the consumer as much as the owner of the likeness rights.

    And, as I said, this is nothing new; the first publicity-rights case, I think, is from decades ago, over the likeness rights of Bela Lugosi. Even the more recent cases you cited (Bette Midler, George Wendt, etc.) are from 15+ years ago.

     

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  26.  
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    Raybone, Sep 12th, 2009 @ 5:53pm

    The Residents

    is back from a summer tour and gives a...

    Big shout out to the Helmet of Darkness for holding down the fort for the conspiracy aware...BTW did you, Lord Helmet, in the past, post as Tgeigs here? Your ideologies seem congruent.


    Kurt could have always gone the the way the Residents did to keep his visage out of the public....

    That said...I must admit it always pissed me off to see dead people exploited to sell stuff without said persons consent pre-mortem. I do feel that a public personae used in something like a video game is OK as it sets up fun fantasy situations where Kurt, Mozart, and Charlie Parker get together for a Jam of their rendition of "Salt Peanuts".

     

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  27.  
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    Lucretious, Sep 13th, 2009 @ 1:21pm

    This one is tough to take sides on.

    Courtney Love annoys me by just seeing her picture and her drug induced twitters don't help things but after having a few days to cook in my empty head, I can sort of see her point. More specifically is the use of (a very dead) Cobain when he is "unlocked" to sing other artists songs. At best this is simply bizarre, at worst it's disrespectful to Cobain's memory as an innovator and musician in general. Had he been alive maybe I would feel differently but this.....I can't put my finger it....just doesn't feel "right".

    Brian Crecente at Kotaku made a great comparison in their weekly editorial. The Beatles "Rock Band" release is a celebration of that group and its growth through the years. Its a complete class act. Activision's Guitar Hero with Cobain is tacky and tasteless. The musician likenesses are used as sort of puppets which leaves one with a bad taste in their virtual mouths. It would be akin to using the likeness of John F. Kennedy as a selectable character in an auto combat game. Maybe you can get away with it legally but, would you really want to?

    Hopefully Activision will take the high road and quietly remove the "unlock" feature and leave Cobain's likeness to sing his own songs and his alone.

     

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  28.  
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    Ben, Sep 13th, 2009 @ 1:40pm

    Publicity Rights: A law to prevent use of a image/phrase in a way that damages the credibility of said person/company.

    Trademark Rights: A law to prevent the use of a image/phrase in a way that damages the credibility of said person/company.

    Honestly, I really am not seeing a difference. Well maybe there is. One has the word Publicity and the other has Trademark. Other than that? Nope. Why waste valuable time on the hill.

     

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  29.  
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    Mike Masnick (profile), Sep 14th, 2009 @ 2:26am

    Re:

    Publicity rights aren't an extension or expansion of copyrights,

    Did I say they were? Nope. I just said it's another "class" of what's often called "intellectual property."

    and they're not new

    Did I say they were? Nope.

    Seriously, ASH. You keep making comments against me that suggest you have some trouble reading. As someone who is clearly a lawyer, I would expect better of you.

    They also make perfect sense when you give the question any thought at all.

    I've given them quite a lot of thought and they still make no sense to me. At all.

    In the Bette Midler case, for example, producers of a commercial were going to hire her to sing a song, and then at the last minute simply hired an imitator so they wouldn't have to pay her (and then didn't acknowledge it was an impersonator in the commercial). Without publicity rights, this would have been a perfectly acceptable practice.

    And it seems like it SHOULD be a perfect acceptable practice. Why wouldn't it be?

    And, BTW, publicity rights persist after death because they're a property right that passes through the decedent's estate, to the heirs, like any other property right. Without that, people could take the person's likeness and slap it onto any cheap defective product and then sell it as if it was actually authorized by the person's estate. (Which still happens, obviously, though it's illegal.) In that respect, it protects the consumer as much as the owner of the likeness rights.

    Protects them how? From thinking that John Wayne's kids need extra cash?!?

    And, as I said, this is nothing new; the first publicity-rights case, I think, is from decades ago, over the likeness rights of Bela Lugosi. Even the more recent cases you cited (Bette Midler, George Wendt, etc.) are from 15+ years ago.

    Yes, the Bela Lugosi case is cited in the link I posted above (again, reading would help) and, of course, is quite famous. Not sure why you would assume that I didn't know that.

    But the POINT of this post (again, reading comp would help) was that the issue is becoming MORE IMPORTANT thanks to the ABILITY TO CREATE DIGITAL VERSIONS of someone. I thought that was spelled out clearly above when I wrote: "this issue is becoming more important as it's now possible to digitally recreate someone" But I guess I shouldn't have made such an assumption, given your critical reading skills.

     

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