Free for a Fee

by Guest Blogger Tyler Ochoa

The right of publicity is a state-law right to use one’s identity for a commercial purpose. Thus, if you want to use a celebrity’s name or image in an advertisement, you have to get his or her permission. Similarly, if you want to sell merchandise that features a celebrity, you probably have to get his or her permission. (I say “probably” because you may have a First Amendment right in some circumstances. But that’s a topic for another day.)

A long-running debate is whether and how long the right of publicity should continue after the death of the person involved. The heirs and estates of dead celebrities argue that celebrities should be able to leave their “assets” to their heirs, that consumers may think that the heirs endorsed the advertiser or the product, and that it would be unfair to allow the advertiser or the merchandiser to make money without sharing it with the celebrity’s family. Advertisers, merchandisers, and public domain advocates argue that celebrities shouldn’t be able to control how their images are used after death. Imagine, for example, how many businesses are named after or use the images of Benjamin Franklin, Abe Lincoln, and other American icons. It would be bizarre if the images of those public figures could be kept out of the public domain and controlled forever by their remote descendants.

In the 14 states that have a statutory post-mortem right of publicity, the decision is made by the legislature. Most legislatures have adopted a term of years after the death of the celebrity, ranging from 20 years (in Virginia) to 100 years (Indiana and Oklahoma). One state, Tennessee, allows the right to last indefinitely, as long as it is being exploited (see Elvis Presley). California originally adopted a term of 50 years after the celebrity’s death, a term borrowed from the 1976 Copyright Act; after the term of copyright was extended to life-plus-70 years in 1998, California extended its statutory post-mortem right of publicity as well. Two states with statutory rights of publicity (New York and Wisconsin) confine the right to “any living person,” meaning there is no post-mortem right of publicity in those two states.

In states that recognize the right of publicity as a matter of common law, the situation is far less clear. In the ten states that have addressed the issue, five have held that there is no post-mortem right of publicity at common law (although three of those states have since adopted post-mortem statutes). Five states have recognized a post-mortem right of publicity at common law, without specifying whether it has a maximum duration.

The issue was recently decided as a matter of New Jersey common law in Hebrew Univ. of Jerusalem v. General Motors, LLC, 2012 WL 4868003, 2012 U.S. Dist. LEXIS 148150 (C.D. Cal. Oct. 15, 2012). The case involved a magazine advertisement that featured the face of Albert Einstein “digitally pasted onto a muscled physique, accompanied by the written message ‘Ideas are sexy too.’” Hebrew University of Jerusalem, which owns all of Einstein’s “literary property and rights” under his will, sued GM for unauthorized use of Einstein’s likeness.

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