Wendel Rosen's Intellectual Property Blog

The Halloween Edition: Frights of Publicity and Celebrity Ghosts

It is an undisputed fact that the 90’s were the best.  The deadcade gave us some of the best television  (Buffy the Vampire Slayer), movies (Clueless), fashion (flannel), and music (Backstreet Boys).  Everything created since then has impaled in comparison.  In recent years, new technology has taken 90’s nostalgia to the next devil, starting with Tupac Shakur’s 2012 posthumous* performance at Coachella.  Michael Jackson’s hologram appeared at the 2014 Billboard Music Awards.  Whitney Houston’s apparition is set for a world tour in 2016.  Such performances bring up a ghost of legal (and obviously ethical) issues.  If ghosts aren’t real, who are the real stakeholders in a celebrity’s rights of publicity after death?  In other words, who may grim reap the rewards of using a celebrity’s image or likeness?

The existence and extent of a person’s posthumous publicity right depends on the terrortory.  In California, rights of publicity survive the person’s death, are considered property rights, and may be inherited or transferred via contracts, wills, and trusts.  Therefore, a person may specify during her lifetime who controls use of her image upon her death.  For example, in his trust, Robin Williams transferred ownership of his publicity rights upon his death to the Windfall Foundation, a charitable organization, with the caveat that his image or likeness could not be used for 25 years following his death.  In doing so, Williams may have saved his estate a significant amount of money.  After all, publicity rights, just like any other property, may create dhaunting tax liabilities for the estate upon a person’s death.

In the absence of a contract or other instrument transferring publicity rights, the California statute (Civil Code § 3344.1) determines the cryptkeeper(s) of those rights, including the person’s surviving spouse or children.  All publicity rights terminate 70 years after the person’s death.  Also worth noting is that the statute specifically targets use of a deceased person’s name or likeness for commercial purposes, such as advertisements and endorsements.  Posthumous publicity rights do not extend to protect the deceased celebrity’s identity in “a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value,” witch are used for “fictional or nonfictional entertainment, or a dramatic, literary, or musical work.”  Thus, people may write and act out a play aboot Janis Joplin, or add video clips of Fred Astaire in instructional dance videos for sale.

The “entertainment” hexemption to post-mortem publicity rights has not been extensively litigated, though a holographic music performance would seem to fall squarely into the exception as a musical or entertaining “audiovisual work.”  In any covent, it is more likely that a producer of any holographic performance would run up against copyright and trademark infringement claims (e.g. for use of songs, names, or other imagery) rather than right of publicity claims.

For the rest of us paranormals, it is unlikely that we will have to concern ourselves with our own rights of publicity during our afterlifetimes.  However, it will be interesting to see how the law and the entertainment industry evolve alongside celebrities’ newfound immortality.

*assuming without deciding that Mr. Shakur is, in fact, deceased.

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