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‘Right Of Publicity’ For The Dead

A mug commemorating Elvis Presley. The image of Elvis is property of the Elvis Presley Estate and managed by Elvis Presley Enterprises, Inc., a subsidiary of CKX, Inc.(Aayesha Siddiqui/WBUR)

A mug commemorating Elvis Presley. The image of Elvis is property of the Elvis Presley Estate and is managed by Elvis Presley Enterprises, Inc., a subsidiary of CKX, Inc. (Aayesha Siddiqui/WBUR)

Intellectual property law is growing. In a world where so much of our “personas” — whether or not you’re a celebrity — are public and online, who should own that information? Especially after you’re dead?

A bill currently pending in the Massachusetts legislature aims to protect the so-called “right of publicity” for celebrities living in the state. If passed, it would protect the “commercial” value of a celebrity’s image or likeness for up to 70 years after their death.

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Interview Highlights

Meghna Chakrabarti: Sen. Rosenberg, a very famousMassachusetts resident, Bill Cosby, first came to you through his lawyer and said we need to do something about protecting the images of celebrities after they die. What did Bill Cosby’s lawyer tell you?

Stan Rosenberg: She said that a number of other states have decided to go beyond the existing law which protects people during their lifetime, and extend those protections after their death. We took a look at the issue and realized that there were a couple of aspects to it.

The first is that we are a very commercialized society and people will buy and sell anything they can imagine. Then there is the question of who has the right to buy and sell. In this case, we have very strong protections for people during their lifetimes, but upon their deaths — what was not allowed the day before is allowed the day after they die. To me that seemed unfair, that people should be able to profit off the intellectual property, the lifetime of work, the characters, the voice, the likeness — everything that belonged to that celebrity — that was created by that celebrity over the course of a lifetime

The second aspect is that the Commonwealth has an interest in this because upon the death of an individual, estate taxes and other forms of government regulation kick in, so we have an interest at that point as well. If people are very successful and live in the Commonwealth, we benefit in their lifetimes. We don’t want them to move out of the Commonwealth during their lifetimes, in order to secure protections upon their death.

With all due respect to my fellow residents of Massachusetts — we’re not California, we’re not New York, we’re not a mecca for Hollywood-type celebrities to live here full time. Is this truly of a huge economic benefit to Massachusetts — and if so, exactly how do you define celebrity?

Rosenberg: Massachusetts is one of America’s cultural meccas and there are many people who live in this state — from composers, to choreographers, and actors. What about our sports teams? We have championship sports teams here as well. There are a significant number of people who have celebrity status who also have wealth. We’re talking about anyone whose image and likeness has any kind of commercial value.

Professor Madoff, you’ve written a book called “Immortality and the Law: the Rising Power of the American Dead.” From that title, that leads me to believe that maybe you don’t think this expansion is the best thing for the U.S. public domain.

Ray Madoff: That’s correct. First of all, there are lots of differences between the way we treat living people and dead people. During your life, you have the protection of the right of privacy. After you’re dead, that’s totally gone. During your life, you’re protected against libel and slander, people saying false things. After death, that’s totally gone. There’s nothing about this expanded right of publicity that does anything to change these rules. So you could write a tell-all book about someone that claimed they were a pedophile, a philanderer, a traitor to the country — you could be intentionally lying about this famous person, and there would be nothing under current law to preclude that, and nothing under the proposed statute to preclude it.

Rosenberg: Sounds like more things we need to fix, then. Why should they be allowed to lie about dead people if they can’t lie about them in life?

Madoff: That’s been the law in our country, in every state.

Rosenberg: That doesn’t mean the law is complete and correct. Common sense says to me that if you can’t call someone a pedophile in life, you shouldn’t  be able to call them a pedophile after they’re dead, when they can’t defend themselves. That’s absurd.

Bill Cosby said that it’s not so much the slander and libel he was apparently concerned about, but that his image or likeness would be used to endorse causes or products that he would not have endorsed while living. Why is that not a justifiable thing to try to prevent after death? 

Madoff: These expansions of the right of publicity don’t do that, and indeed they can even encourage just the opposite.

So look at the way Einstein has been used. Einstein markets Apple computers, baby products, Genius bread — and nobody thinks this is what Albert Einstein would have wanted. But the problem is because that there is a descendable right of publicity in New Jersey and because his interest has been acquired by someone with an interest in maximizing the market value, it increases the marketing associated with these names in all sorts of ways that the person might not have wanted. John Lennon has recently been used in an ad for cars. Jack Kerouac is not too hip to be owned by CMG Worldwide, one of these companies that owns celebrity identities and markets them to maximize value.

[Additionally] It’s very important to understand the interplay of the tax system in the descendable right of publicity. Anything that is property that can be passed on at death is subject to tax at its highest market value. Let’s say you have a family with a valuable name — J.D. Salinger or Bill Cosby — and they don’t want to have their loved ones used in marketing commercials. Nonetheless, the state tax is imposed on the value of this right at its highest market value. To give you an idea of how valuable this rights are, the Mohammed Ali right of publicity is recently valued at $62 million dollars. If you impose a tax of $20 million on that asset, a family could be forced to market the name simply in order to pay the taxes associated with the ownership of that name The creation of property rights raises its own problems that people are often not aware of.

Let’s think about the careers of all those great New England celebrities. You could say they built their careers on the common culture of entertainment and sports that we all share. That’s what the public domain is. If we’re creating laws that keep things out of the public domain, do you think we might be risking doing anything to muck up the engine of creativity?

Rosenberg: No, absolutely not. The point is, should someone have to give permission, and if so, if there’s a commercial value, to whom does the commercial value go? For Apple computer, which has more money than Fort Knox, to be able to use the image of Einstein to make more money — and for no one in the Einstein family to benefit — why does Apple need more money as opposed to the foundation of Mr. Einstein?

Madoff: The thing to note is that the cultural use of these images is an important part of our cultural heritage. So if you think about the work of Andy Warhol, and how he used the images of Marilyn Monroe and Elvis Presley to create his artwork, that’s because these images have a cultural resonance. They mean something that we understand that goes beyond the personality of Marilyn Monroe or Elvis Presley. It’s a way of communicating with each other. And a strong descendable right of publicity would really limit the creation of these types of artworks and communications that reference our cultural heritage.

 

 


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