The Volokh Conspiracy
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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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