A Brief Examination of The Postmortem Right Of Publicity

By Justin M. Jacobson, Esq.

As technology advances, additional legal situations, including those relating to the rights of the deceased, continue to arise. One of today’s hot button issues is the use of computer-generated imagery (“CGI”) and computer-generated holograms (“CGH”) recreating deceased individuals for commercial purposes and how it relates to an individual’s right of publicity after death.  This includes a series of recent public instances, such as the use of a holographic representation of deceased rapper, Tupac, performing live at the 2012 Coachella Music Festival in California, the debate around recently deceased actress, Carrie Fisher’s potential “CGI” inclusion in the upcoming “Stars Wars” franchise movies and the use of “CGI” to recreate the deceased actor, Paul Walker in the recent movie, “The Fast and Furious 7.”

It is clear that there is enormous value in a deceased celebrity’s persona, commonly referred to as a “deleb.” For instance in 2016, Michael Jackson was the highest earning “deleb,” grossing $825 million.  Additionally, in that same year, the right holders to Arnold Palmer’s likeness ($40 million) and Elvis Presley ($27 million) were both substantial earners, further reinforcing the substantial value in postmortem publicity rights.

An individual’s right of publicity is the right to control the use of a person’s name, nickname, voice, image, and/or likeness. This includes preventing any use, whether commercial or non-commercial, without prior approval from the rights holder.  Authorization to exploit an individual’s right of publicity can be obtained through an agreement granting a third party the permission to utilize an individual’s right to publicity for a specified purpose.

There is no applicable federal statute regarding the disposition of an individual’s right of publicity at death, so an individual’s postmortem right of publicity has to be interpreted based on state law.  In these instances, the location of an individual’s domicile at the time of their death is typically of paramount importance.  This is because a person’s “domicile” typically determines which state law is applicable to determine the rights of a particular deceased individual.

The scope and length of the postmortem right of publicity varies dramatically from state to state. Currently, there are twenty-three states that recognize the existence of some form of a postmortem right of publicity; however, New York and Wisconsin do not recognize the existence of any postmortem right of publicity.  A variety of states recognize the existence of this right; yet, they take extremely different approaches through a variety of applicable stipulations and statutory regulations.  For instance, Washington State recognizes the right of publicity only if the deceased person’s postmortem right has commercial value at death, such as them being a celebrity or notable person.  Tennessee provides a right of publicity for the first 10 years after an individual’s death; however, if there is still commercial value after the initial ten years, then the right continues indefinitely. In Florida, the postmortem right of publicity extends 40 years after death and then terminates.  The state of Hawaii’s right of publicity lasts for 70 years after an individual’s death as long there is commercial value at the time of their death.

In addition, California currently has the most comprehensive laws regarding the postmortem right of publicity.  According to California state law, a postmortem right of publicity exists for an individual, who is domiciled in California, who has passed away on or after January 1, 1915, and whose name or likeness has commercial value at the time of their death.  California law provide heirs with the right to exploit the deleb’s postmortem right of publicity for up to 70 years after his or her death (California Civil Code §3344.1).

In determining where an individual’s domicile is, a New York District Court in a case involving Marilyn Monroe’s postmortem right of publicity provided a list of factors that could be utilized to determine an individual’s official “domicile.”  These include the “length of [the individual’s] residence [in the state], [whether the individual’s] place of worship [is located in the state], [where the individual’s] voting registration [is], [where the individual’s] automobile registration [is], [the individual’s] club memberships [location], locations of [the individual’s] children’s schools, location of [the individual’s] bank accounts, location of [the individual’s] business dealings; and where [the individual’s] tax returns are filed” (Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y., 2007).

Overall, the postmortem right of publicity is extremely important as it has strong implications for how a person is remembered and exploited after their death.  Since, the right of publicity varies from state to state, and is generally based on a person’s domicile at death, it is important to consult with an attorney to understand an individual’s potential postmortem rights of publicity and how to best dispose or otherwise utilize them.

This article is not intended as legal advice as a professional specializing in the field, such as an attorney, should be consulted. www.trademarklaw.nyc

(c) 2017 The Jacobson Firm, P.C.

About the author

Justin M. Jacobson, Esq. - Vice-President, The Jacobson Firm, P.C. - Attorney Specializing in Entertainment, Sports, Esports, Fashion and Art Law. In particular, The Jacobson Firm, P.C. handles Trademarks, Copyrights, Contracts, Estate Planning, Music Business and Brand Development on behalf of creative talent and lifestyle brands.

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