The tragic death of renowned recording artist Prince left many reminiscing about his meticulously crafted public image. In life, the law allowed Prince to control the commercial exploitations of his image. At death, however, that control was lost.
Celebrities routinely harness their “images” as a means of generating revenue, relying on intellectual property and right of privacy laws, including the right of publicity, to monetize their likenesses, performances, images, voices and identities in connection with advertisements. Often overlooked, however, is the question of who controls celebrities’ publicity rights upon death. The short answer, unsurprisingly, is that it depends.
The right of publicity is the right to control the use of one’s identity, including his or her name, voice, image and likeness, or other indicia of identity. There is no federal statute regarding the right. The analysis therefore turns on a state-by-state inquiry. At least 30 states have established the personal right of publicity, either by statute or under their respective common law, or both. However, the same can’t be said when it comes to the inheritability or one’s ability to transfer the right of publicity at death. In this regard, there is great variance amongst the states, ranging from having the ability to fully transfer the right of publicity at death, to being silent on the issue. This is clearly different from other intellectual property rights such as trademarks, patents and copyrights which can be passed on to the rights holder’s beneficiaries.
The state statute (or common law) post mortem right of publicity (if any) of the state in which the celebrity was domiciled at death governs under the majority approach. There are state statutes like Indiana’s, however, which apply the right irrespective of the individual’s domicile at death. California, for example, a state known for its celebrity-friendly laws, has an express post mortem statutory right. The California statute provides that a deceased personality’s various indicia of identity may not be used in advertising without prior consent from the beneficiary for 70 years. While there are some requirements, such as registration for post mortem rights and that the identity must have some commercial value at death, the beneficiary still enjoys the right to control the celebrity decedent’s post mortem right of publicity under California law. There are various celebrities who were California domiciles that have taken advantage of this flexible transferability of their publicity rights, including Michael Jackson, whose right of publicity was valued at more than $400 million, and Robin Williams, who was able to confer his publicity rights to a charitable organization.
On the other hand, there are states such as New York and Minnesota with no express post mortem statutory right. New York courts do not recognize any post mortem inheritability or transferability rights, which means that the publicity rights terminate when the celebrity dies. Minnesota courts have not yet addressed the issue. Admittedly, Minnesota seems to be a rather obscure state for discussing celebrity publicity rights. The death of Minnesota domiciliary, Prince, however, has spurred an effort by the state legislature to introduce the transferability of publicity right in that state. Despite his careful efforts for maintaining artistic control over his image and persona, without a Minnesota statute or case law that codifies his right of publicity as an inheritable and/or transferable property right, Prince’s beneficiaries may ultimately lose control over his unique image and identity.
In practice, this patchwork of statutes and cases poses legal issues, especially for the ad industry. Advertisers and their agencies should look upon the most restrictive state as the “rule” as the baseline for considering whether they can use a celebrities image rights without consent or at least operate under the assumption that the right of publicity exists for at least 50 years following the celebrity’s death. Nevertheless, state-by-state research is imperative to determine whether permission from an heir is necessary before using the image or some kind of indicia of the identity of a deceased celebrity in an advertisement.