We reported in the past on the right of publicity in the context of tweeting or posting in social media about celebrities without their permission. As we are approaching Halloween, we thought it might be an opportune time to continue this series and report on the postmortem right of publicity for the deceased. Most companies might have guessed that a right of publicity does not always end at the gravestone (at least for individuals who were domiciled in the U.S.), but that deceased individuals may in a sense exercise their rights from the grave for some specified period of time. However, companies wishing to exploit a deceased individual’s likeness in the U.S. for commercial purposes may be wondering exactly how long they must wait, and which state laws they must turn to in order to assess this time period. (Of course, obtaining permission from the estate in any case is the most conservative approach.)
The Right of Publicity
The right of publicity is generally understood to be the right of a person to control the commercial exploitation of his or her identity, and prevent commercial appropriation of his or her identity by others without permission. Although this right under U.S. law is recognized at the state level and thus can vary, a right of publicity violation generally consists of unauthorized use of a protected aspect of identity (i.e. name, image, likeness) for commercial purposes, such as use on commercial products and in commercial advertising.
The majority of states in the U.S. that recognize a right of publicity extend the right to deceased individuals. However, these so-called “postmortem” rights are usually limited in duration or subject to some requirements for acquiring, maintaining or enforcing the rights. Regarding duration, most states start the clock at the time of the individual’s death, and stop the clock 20 to 100 years later.
Whether the Right Exists for a Particular Deceased Individual
Companies may wish to exploit a deceased individual’s likeness for commercial purposes in a variety of ways, such as in an advertising campaign, on a commemorative product, or in a social media post. However, such companies must carefully assess any liability that may be associated with doing so without the permission of the individual’s estate.
The Majority Rule
Almost all courts follow the rule that whether or not a postmortem right of publicity exists is a matter of the law of the state in which the deceased individual domiciled at the time of death. Thus, under this majority rule, companies would be safe from right of publicity claims when the individual’s state either does not recognize a postmortem right of publicity, or the right of publicity has already ended based on the individual’s date of death. Indeed, in a famous federal case in California, the estate of Marilyn Monroe could not obtain relief for a right of publicity violation in California, since she was found to have been domiciled in New York at the time of her death, which did not recognize a postmortem right. Likewise, the estate of the late Diana, Princess of Wales, was found by a court not to have an enforceable postmortem right of publicity to assert in California, since she was domiciled in the UK at the time of her death, which also did not recognize such a right.
The Outlier States
Now comes the tricky part – it would be too easy if the analysis ended there!
There are a couple of outlier states, Indiana and Washington, that have statutes that are worded in such a way that the law of those particular states could be used to find a postmortem right of publicity – even if the individual never domiciled there – so long as the infringing activity occurred in those states. As you can see, this is a game-changer particularly for companies launching nationwide campaigns or products.
Courts have viewed these state laws differently; one noting:
[W]hether a famous person already dead managed to leave behind for his/her heirs any descendible right of publicity is not a function of Indiana law (unless, of course, the famous person died a domiciliary of Indiana). Instead it is a function of where that famous person happened to be domiciled at the time of death. Shaw Family Archives, Ltd. v. CMG Worldwide, Inc., 589 F. Supp. 2d 331 (S.D. N.Y. 2008).
A federal district court in the state of Washington held that the Washington statute was unconstitutional, to the extent that it altered the normal rule that the law of the state of domicile at the time of death governed whether the postmortem right was recognized. Experience Hendrix, LLC v. HendrixLicensing.com, Ltd., 766 F. Supp. 2d 1122 (W.D. Wash. 2011). In that particular case, the estate of deceased rock legend Jimi Hendrix (who was domiciled in New York) renewed a previously-asserted right of publicity claim with respect to an unauthorized use in Washington, after the statute had been amended to recognize a postmortem right even when a deceased individual domiciled elsewhere. After the district court held aspects of the Washington right of publicity law unconstitutional, the estate appealed to the Ninth Circuit. Just this year, the Ninth Circuit reversed the district court’s ruling that the statute was unconstitutional, although it stated that its holding applied to the “limited controversy” before it, and it “need not resolve” the issue of “Washington’s approach to post-mortem personality rights[, which] raises difficult questions regarding whether another state must recognize the broad personality rights that Washington provides.”
Thus, at least for the time being, companies need to be aware that they could potentially be sued in Indiana and Washington for unauthorized uses of a deceased individual’s likeness in those states, even if the individuals were never domiciled in those states.
How Long Companies Could Be Liable for Unauthorized Use
The postmortem rights of publicity in the outlier states are relatively long in duration. Indiana recognizes a postmortem right of publicity for one hundred years after the date of the personality’s death. Washington recognizes its postmortem right of publicity for seventy-five years after the death of the personality, or for ten years after the death of an individual whose likeness did not have commercial value at the time of his or her death.
Thus, if a company is launching a nationwide campaign or product that uses a deceased individual’s likeness, it should be aware that it can be liable for a right of publicity violation for up to one hundred years after the individual’s death (under Indiana law), regardless of where the individual was domiciled. If a company will only be using a deceased individual’s likeness within a state other than Washington or Indiana, then the company should look to the law of the state where the individual was domiciled of the time of his or her death. If that state’s law does not recognize a postmortem right of publicity, or if it has expired, then the company may not be liable for a right of publicity violation.
Of course, the most conservative approach is to obtain permission from the estate before using any individual’s likeness for commercial value, regardless of where the use may occur or the individual was domiciled. Even if a postmortem right of publicity does not exist, besides the potential for bad publicity, it is possible that an estate could assert other claims, including a trademark infringement claim under the Lanham Act.