How important would it be to you to be able to gift your publicity rights to a friend, family or charity once you have died?
I thought so, you’ve never even considered it and even if you have I am sure you are asking the question `who would be interested in publishing my image anyway?`. This is the same for the vast majority of people but for celebrities their image and publicity rights generate a fortune in licensing fees for advertising, promoting clothing lines, toys and pretty much anything else you can ever think of. Let’s face it, celebrities put their faces to anything these days and are well aware of the value in doing so particularly with the growing use of electronic media for marketing.
It therefore makes sense that celebrities would want to pass on this right and generate income for the beneficiaries of their estates when they die. For example, I am sure the Beckham’s would like their children to benefit from ‘brand Beckham’ if anything were to happen to them, and who can blame them! This is where the issue arises in relation to dead celebrities or ‘delebs’, as they have been so eloquently termed; who controls their publicity rights after they have died?
The answer is not so clear anymore as the legal recognition of these publicity rights is a concept evolving all the time. Copyright law goes some way to protecting the work of celebrities if they write a book, create a piece of music or art, but upon death, the rights of a celebrity to prevent unauthorised use of their image, voice, signature or name ceases. The rest of the world is therefore free to use and exploit the publicity rights of the ‘deleb’ for pretty much whatever purpose they want!
The high profile litigation over Marilyn Monroe’s estate shows just how thorny an issue these rights are for celebrities and the beneficiaries of their estates. Over the course of Monroe’s life she developed a close relationship with a number of photographers (Sam Shaw, Milton Greene and Tom Kelley) who are responsible for many of the iconic images we are so familiar with (the iconic blowing skirt shot was taken by Sam Shaw). The copyright for many of these images was retained by the photographers therefore, in theory, giving the photographers the right to use these images. However, the issue of publicity rights arose because the photographers were not happy about having to pay licensing rights to the estate for using property they in fact owned. The photographers launched identical lawsuits against the estate and CMG (the company responsible for the licensing of Monroe’s publicity rights), challenging the authority of the estate to control these rights. The courts ruled that Monroe did not have the authority to leave these rights to her estate at the time of her death because there was no provision in law to do so.
End of story? Unfortunately not. Hollywood and the Screen Actors Guild took notice and lobbied for a bill enabling the bequeathing of publicity rights. The pleas fell on the sympathetic ears of the Governor of California, Arnold Schwarzenegger himself. Eager to assist his fellow celebrities (and ultimately his own estate), he signed into law a ‘dead celebrities bill’ enabling the bequeathing of publicity rights for all stars that died after the 1st January 1938 and prohibiting the unauthorised use of images, voice, name or signature of a dead celebrity. One qualification on this is the celebrity had to be a resident of California at the time of death, a challenge which Monroe’s estate has faced with the suggestion she was actually a New York resident!
This is worrying for copyright owners of numerous images of dead celebrities who could face a torrent of litigation seeking to challenge publicity deals made decades ago because of the retrospective nature of the bill. It is also likely to have a serious effect on freedom of expression, stifling the use of images and sound bites for creative and artistic purposes; surprising from a country with freedom of expression entrenched in the Constitution. It is not however surprising from an ageing State Governor wanting to ensure his estate receives full remuneration for his gun wielding images and ‘I’ll be back’ catchphrase!
All information is correct on the date of posting.