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Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

The Market in Dead People

Michael Jackson earned $75 million dollars last year. He beat out Arnold Palmer, and Elvis Presley for the top spot on the annual list of high-earning dead celebrities. Many of these "delebs" earn more than living performers. This lucrative market in the dead is made possible by a state law called the "right of publicity" that some states have extended after death.

Most people haven't spent much time pondering whether extending rights over a person's identity after death is a good idea, yet New York and Minnesota have both recently considered adding such rights. Although advocates for such rights often use the language of honoring the dead, and giving the living survivors tools to protect the memory of their deceased loved ones, the reality is quite different. Those who profit from the dead are not always the close, loved ones of the deceased that one might imagine.

Consider the acclaimed musician and pop star Prince who died without a will. His estate now is held by a number of estranged relatives who he apparently was not close with, and with whom he had little contact. Although we can no longer ask him, it might well be that Prince would have preferred that his fans be able to honor him with in memoriam posters, buttons, and t-shirts, rather than being blocked from doing so by distant relatives wielding his right of publicity after his death.

Nor is there any guarantee that those who take control of deceased celebrities' identities will honor the dead, rather than sully their reputation. Martin Luther King Jr.'s estate recently authorized the use of King's name, voice, and image in a 2018 Super Bowl commercial for Dodge trucks. Many members of the public found this crass hawking of a car by the great civil rights hero deeply offensive. While the estate authorized the use of his identity in such an advertisement, the estate has asserted his postmortem right of publicity to stop numerous other uses of King's identity that were specifically intended to honor him. The estate successfully sued to stop the sale of commemorative busts of King, and even convinced the U.S. government to pay $800,000 for the right to depict King on the recent monument of him erected in Washington, D.C. The estate has also demanded (and received) payment for uses of his likeness in speeches shown in films.

Nor can it be said that the estate represents the wishes of King's remaining family. King's children have been embroiled in a decades-long dispute over who owns rights to him after death. After the outcry over the Dodge ad, King's daughter, Bernice King, who does not control the estate, noted that she and the King Center (founded by his widow, Coretta Scott King) do not have rights to King's name and likeness, and did not approve of the commercial.

This sort of postmortem right makes little sense. It isn't furthering the personal and dignitary interests of the surviving heirs, but instead is shutting down public discourse about public figures, largely so that third-parties can get rich from the few people who die with marketable personalities.

These laws have created a ghoulish futures market in aging celebrities. Unrelated individuals and companies can visit older actors, and convince them to sign over their postmortem rights to these strangers before they die. This creates wealth in third-parties that have no relationship with the deceased at the expense of the broader public, who will be severely limited after death in their ability to depict and refer to the dead.

Take for example the pin-up model and actress Bettie Page, who died in 2008 in California where such a postmortem right is recognized. Page assigned her rights in her postmortem identity to an agent of CMG Worldwide, a company that owns and manages primarily dead people. The company has turned Page into one of the top earning dead people―she made more than $14 million last year. It is not clear that Page would like how CMG is managing her afterlife. The company authorized a line of adult toys using her name and likeness that highlight her sexually-charged persona, one that later in life she tried to put behind her. Page's story raises the chilling possibility that right of publicity prospectors might hunt for old celebrities who lack close family, and be particularly vulnerable to signing over their rights to friendly visitors.

There are ways to craft postmortem rights so that they do not lead to the prospecting of elderly celebrities, or grant windfalls to unrelated corporations that can make a killing on these delebs. Some limited postmortem period to honor the dead may be appropriate, largely to prevent the commercialization of the deceased out of respect for the living survivors. But the laws shouldn't be something that enterprising strangers or corporations get to use to get rich off the dead at all of our expense.

[This is the fourth post in a five-part series about issues raised in my book, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press 2018).]

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  • Rev. Arthur L. Kirkland||

    If heirs can inherit enormous amounts of money -- and squander the cash, or use an unearned windfall in manners that would have horrified the person who earned and bequeathed the asset, or in a way someone else (Jennifer Rothman, perhaps) finds distasteful, sometimes decades after the inheritance occurs -- the postmortem benefits described in this account seem unremarkable.

  • Jon S||

    A lot - probably most - of that $75 million that Michael's Estate made (and I believe it is probably more) has nothing to do with his publicity rights. To understate things, he had quite a bit of other IP that generates quite a bit of money.

  • M.L.||

    Good post. But isn't the bulk of "delebs" earnings due to copyrights rather than the right of publicity?

  • swood1000||

    There are ways to craft postmortem rights so that they do not lead to the prospecting of elderly celebrities, or grant windfalls to unrelated corporations that can make a killing on these celebs.

    And it's called competent estate planning. If a person spends his life creating value that outlasts him, he should have the same ability to direct what happens to that value as he has with any other asset. And why isn't control over the dignitary interests of a decedent best left up to that person? The horror stories you point to all concern the situation where the person died without a will or he didn't properly think through the right of publicity issue.

    If a postmortem right of publicity did not exist would that mean that anyone could use the decedent's publicity rights for whatever purpose he wished, or that nobody could use those rights for any purpose? How would either of these result in an improvement over full control by the decedent?

    Aging celebrities are no more at risk of being taken advantage of than any other elderly person with a valuable asset.

  • swood1000||

    Some limited postmortem period to honor the dead may be appropriate, largely to prevent the commercialization of the deceased out of respect for the living survivors.

    Every limitation on a person's postmortem control over his publicity rights simply reduces the value to him during his lifetime of those rights. What good justifies this?

    But the laws shouldn't be something that enterprising strangers or corporations get to use to get rich off the dead at all of our expense.

    If a corporation ends up with ownership it is because the decedent negotiated that result, presumably receiving what he wanted in exchange. Why should the laws forbid this? How is this an "expense" for the rest of us? Why should we all have a right to profit from a decedent's publicity rights?

  • swood1000||

    It's also not clear whether the author is arguing in favor of restrictions on how long after Lebron James dies Nike can continue to have the exclusive right to use his image with their products, or restrictions on the ability of Lebron James to designate which person or entity will have the right after his death to associate his image with whatever commercial products it chooses (of course within the boundaries specified by Lebron). If the latter, why the distinction?

  • gormadoc||

    Both using MLK's likeness in a commercial and being charged for his likeness in a monument is crass, most would agree. But how would you fix these rights to try to prevent these? If the rights don't exist and it's a free-for-all then he could be in any commercial and on a monument. If the rights do exist but can't be transferred from the deceased and nobody could use them then he wouldn't be in a commercial or on a monument. The optimal way would involve some degree of transferability.

    It seems the best way is the current way: allow the celebrity to give those rights for use after death to whomever they want or have it transfer to the estate if undeclared. Those people are likely to be the best people to exercise those rights in accordance with their wishes. You could have it not become part of the estate but then nobody could use their likeness at all. The current situation is not going to lead to the best outcome in every case but it's worked well in most cases.

  • swood1000||

    Furthermore, how does restricting the general public from profiting from MLK's postmortem publicity rights involve "shutting down public discourse about public figures"?

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