Publicity Rights After Death Are Severely Limiting Culture

from the get-rid-of-them dept

We’ve discussed, a few times now, the serious problems with the rise of publicity rights as a new form of intellectual property law, driven at the state level, which is severely stifling speech and culture in a variety of ways. In some states it’s worse than others and an article at the NY Times highlights how problematic it is in states that allow publicity rights after death. He notes that the estates of Albert Einstein and Rosa Parks have been particularly aggressive in enforcing such laws:

This so-called descendible right of publicity has created a new kind of business: corporations that acquire and market dead people. So Rosa Parks sells Chevy trucks and Albert Einstein peddles everything from baby products to Apple computers. (And who knows how Elizabeth Taylor might be put to work now that she has gone to the other side?)

But say you wanted to write a play about a chance meeting between these two historic figures. Could you? While the play itself may be protected by the First Amendment, that doesn?t mean that the companies that manage Parks and Einstein might not attempt to assert control. Hebrew University has aggressively defended Einstein?s image, even blocking its use on a book called ?Everything?s Relative.? And don?t expect to sell programs, posters, T-shirts or the other paraphernalia that might support your play without getting approval and paying whatever fee the owners of Parks?s and Einstein?s rights of publicity demand.

The article goes on to note that the main reason often given for the right to publicity — that it protects the reputations of the deceased — does not seem to be supported by the facts, and notes that defamation law in the US ends at death. So, you can still freely defame a deceased American, no matter what publicity rights laws say.

Commenting on this article, law professor Peter Friedman makes a bunch of really good points about how, just because you can make money off of something, it doesn’t mean it should be property:

Extending control over the identity of important people to their estates after death is, I think, to mistake how culture and art work and to elevate property rights to an importance that does us very little good. The identities of famous people as varied as Einstein, Elvis Presley, and Marilyn Monroe become part of our culture?s language. That cultural meaning then becomes part of the language of our cultural conversations, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that culture and art thrive on. To remove the identities of dead people from this language in the absence of payment for their use would substantially damage our culture.

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Comments on “Publicity Rights After Death Are Severely Limiting Culture”

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Joseph K (profile) says:

The rationale vs the real reason

The thing that really bothers me about this case is that there’s such a disconnect between the rationale behind this publicity rights thing and the real reasons. They’re claiming the rationale is to protect the reputation of these dead people, but really it’s just about making money. I have no problem with people doing things to make money, but to create a law that allows you to reach out and tamper with the free expression of other people needs really good justification, and reputation just doesn’t cut it.

Just Cow says:

Needs a boundary to be contained.

I have a problem with the extension of a deceased persons image into the property rights domain.

If it were to preserve only the intent for which they lived, I think this should be permitted, as all can benefit from this. Like say Einstein’s image can continue to make money to benefit the pursuit of sciences for which he advocated. Or say Elizabeth Taylors Aids research benefit or to help aspiring actors. I think if their activities are restricted to only benefiting the culture and people then there wouldn’t be a problem.

Obviously a portion of this should benefit their DIRECT family, BUT ONLY their direct family. I feel that these rights should not extend any where else, AND THEY SHOULD NOT BE TRANSFERABLE to any corporation or group other than the family one at the reading of the last will and testament.
The family alive at the time of their death and their children should be beneficiary’s, but I don’t believe it should extend forever and countless generations. Only the beneficent organization which is to benefit all people should have continuation.

I think its fine for them to seek protection of their image if its PROVED to be possibly an impact to the family’s name or the charities they represent. But lets face it, when these rights get sold to greedy corporates they want to stop all and sundry like some TOLL GATE, which is not on.

Its a difficult one, because the world is full of STUPID people who would jump at the opportunistic chance to use their image for some pretty tasteless things or causes. Just to make a point or quick cash, and they may not be a corporate money man.

Though the use or dialog in communicating their ideas or life experiences should be allowed within reason. Or fair use as long as it was tasteful, otherwise everybody looses.

I did think it interesting that defamation laws only exist till death. Throws an interesting twist on things. But I’m much more shocked by the revelation that a mother with unborn child who has it killed via negligence by a fool, has no way of seeking the full extent of the law. As the law does not recognize that child, as its not born yet. Though they register a death certificate.

That why the statue of Justice is blind folded, it wields a sword, but its blind …. some say DUMB. Got any better ideas?

misterdoug (profile) says:

Re: Needs a boundary to be contained.

Obviously a portion of this should benefit their DIRECT family…

Really? Why, exactly? Family members can inherit any property passed to them by the deceased, and as relatives of a famous figure they have a leg up on generating their own profits out of it. Why on Earth should they benefit from other people’s works on the subject? Think about what you’re saying for a minute. A guy struggles up from poverty, becomes a famous geneticist, invents a cure for cancer and then dies. An author wants to write a book about this exemplary person’s life, but his relatives insist on 50% of the profits or the book can’t be published. What gives them the right to deprive the world of this author’s work, just because they happen to be related to the subject?

vivaelamor (profile) says:

Re: Re:

“What kind of world do we live in that I am legally prohibited from putting up a billboard of Einstein and his lifelong message of white supremacy and anti-Semitism?”

What kind of world do we live in that I am legally prohibited from putting up a billboard of Ghandi and his message of racism?

What kind of world do we live in that I am legally prohibited from putting up a billboard of Mother Teresa and her message of suffering, imposed on the poor and sick?

Anonymous Coward says:

Re: Response to: Anonymous Coward on Mar 31st, 2011 @ 11:30pm

My coworker’s wife died unexpectedly last week but she was pretty cute. Do you think I will have a problem if I use her picture in a national ad campaign for a new herpes treatment? What do you think, color or B&W?

I’m thinking B&W because it’s much more dramatic.

Mike Masnick (profile) says:

Re: Re: Response to: Anonymous Coward on Mar 31st, 2011 @ 11:30pm

My coworker’s wife died unexpectedly last week but she was pretty cute. Do you think I will have a problem if I use her picture in a national ad campaign for a new herpes treatment? What do you think, color or B&W?

So, you go and do that, and then your coworker points out how incredibly tasteless this is and *that* makes a ton of news, and people start boycotting your product and company.

No need for publicity rights laws that limit speech and culture.

Either way, publicity rights laws wouldn’t apply to your coworker’s rights in most cases, since they tend to be written to only apply to “celebrities.” So… basically, you’re wrong.

Matthew (profile) says:

Re: Re: Re: Response to: Anonymous Coward on Mar 31st, 2011 @ 11:30pm

In general, i think publicity rights cases are pretty stupid, but i don’t want to see Jackie Kennedy and Marilyn Monroe teaming up on Martin Luther King Jr. We live in a world where celebrity sex tapes are pretty common, so I don’t think social pressure is going to stop it from happening, so what are we left with?

Any Mouse (profile) says:

Re: Re: Re:

Possibly. Edison and Tesla were extreme rivals working in the same field. Of course, Edison was a hack.

Tesla had AC figured out while Edison was wiring cities to run on DC. He wanted every building to have a DC generator (because DC doesn’t transmit well over long distances). Think of the monopoly and marketing on THAT hardware.

Miff (profile) says:

Actually, I believe that we need some sort of “endorsement right” that terminates indefinitely at the death of the person, that is, the likeness of the person cannot be used to endorse any product, service, or other branding after their death, excluding those endorsements that were arranged before the death of the individual in question, and with any possible changes outlined in that person’s will.

Well, we should also use publicity rights, but with different purposes and less restrictions. (For example “public figures” such as Einstein don’t have any publicity rights protected, but his endorsement rights were terminated when he died.)

TL;DR version: We need laws that differentiate between the use of someone’s image for endorsement and the publication of the image in, for example, an encyclopedia article or unauthorized biography about the person in question.

misterdoug (profile) says:

Re: endorsement rights

Yes, we need an even bigger litigation industry tilling the fertile soil of ambiguity, siphoning off a percentage of people’s estates to determine whether they are public-figurey enough that their stories can be freely told.


We could just accept freedom of speech even though it means sometimes people say things we don’t like, and make lawyers go do something productive.

Peter Friedman (profile) says:

Re: At least be consistent


Funny, I’m a passionate defender of ensuring all Americans have money to have a decent life in retirement and to get medical care, but I’m the guy who Mike quotes as thinking that propertizing publicity rights is madness.

It’s pure speculation that I would not have bothered broadcasting but for coming across this baseless comment, but I tend to think that the zeal to exten property rights to anything that can be monetized is far more reflective of an attitude that deifies the free market and believes our least fortunate would be better off if only government drowned in a bathtub.

Finally, just a factual note. Ray Madoff is a woman. It’s a natural mistake, but I happen to have known her in college.

Anonymous Troll Hunter says:

Troll Wars

Is it just me, or have the usual Anonymous Trolls upped their game lately? I mean, from implying that Einstein was a racist to the completely-left-field “black and white then,” have they abandoned their true roots as subtle Trolls and just gone all-out Full Metal Troll?

Isn’t there an Anonymous NaNaNa option? Or an auto-Anonymous-Poster that will just chose from several replies?

1. Mike sux. Plus he’s dumb and lies.

2. Black is white, white is black. There are no greys.

3. Your mom. In bed.

hey can we just append those cute catch-phrases at the end of AnonyTroll posts?

“What kind of world do we live in that I am legally prohibited from putting up a billboard of Einstein and his lifelong message of white supremacy and anti-Semitism?” IN BED!!!!

“einstein was a fraud anyway, he got all his good ideas from tesla” IN BED!!!!!!

“So, black and white then?” IN BED!!!!!

Hey, wait, that last one seems kinda racist!

Ligoren (profile) says:

I agree that it is simply blasphemous to make money on already dead people just by selling their paraphernalia and this should be banned. For example, my idol is Rosa Parks and I would not want the exploits of this woman turned into some kind of commercial nonsense for the benefit and profit of today’s ungrateful generations. It would be better to read about her historical essays and get the best for themselves, not the most lowly that they have now dominate. That is why I am fully in favor of this amendment.

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