Instead, it has afforded riches to the heirs of the dead and the companies that represent them. Einstein’s estate has generated $76 million in the last five years. But the dead themselves — particularly those who would have preferred to avoid being marketed as a commodity — may not be so well served.
While people can provide for the postmortem exploitation of their identities, there is no legal mechanism by which they can prevent it. It is a basic tenet of wills law that a person cannot order the destruction of a valuable property interest. Therefore, if Parks had written in her will that she did not want her identity to be marketed, there is a good chance that a court would not enforce those wishes.
The economic value of a dead celebrity’s image imposes another cost as well. Namely, rights of publicity, like all other property interests, are subject to estate taxes at their highest market value. This means that even if heirs choose not to market a person’s identity (perhaps to protect their loved one’s dignity), they nonetheless must pay taxes on the right. In some cases, that could compel heirs to market their loved ones’ identity in order to pay the taxes associated with it. Paradoxically, the values would likely be highest for those individuals who most coveted their privacy while alive (think J. D. Salinger).
The patchwork approach of state laws has resulted in uncertainty regarding what is, and isn’t, privately owned under the right of publicity. There has been considerable litigation in recent years over such questions as these: What happens when the right of publicity bumps up against First Amendment rights? How do we determine which state’s law applies to a particular decedent? And how far can states go in creating and controlling these rights? (Just last month, Washington State’s right of publicity was found by a federal court to be unconstitutionally broad.) Yet, because these are issues of state law, the litigation has not brought clarity on a national level.
Congress should step in and enact a federal right of publicity. In doing so, it should establish clear First Amendment protections and set forth a relatively short term for the right of publicity to survive death (perhaps 10 years). Most important, the law should provide a mechanism that allows people to opt out of marketing their identities after death. After all, sometimes the dead should be allowed to simply rest in peace.
While people can provide for the postmortem exploitation of their identities, there is no legal mechanism by which they can prevent it. It is a basic tenet of wills law that a person cannot order the destruction of a valuable property interest. Therefore, if Parks had written in her will that she did not want her identity to be marketed, there is a good chance that a court would not enforce those wishes.
The economic value of a dead celebrity’s image imposes another cost as well. Namely, rights of publicity, like all other property interests, are subject to estate taxes at their highest market value. This means that even if heirs choose not to market a person’s identity (perhaps to protect their loved one’s dignity), they nonetheless must pay taxes on the right. In some cases, that could compel heirs to market their loved ones’ identity in order to pay the taxes associated with it. Paradoxically, the values would likely be highest for those individuals who most coveted their privacy while alive (think J. D. Salinger).
The patchwork approach of state laws has resulted in uncertainty regarding what is, and isn’t, privately owned under the right of publicity. There has been considerable litigation in recent years over such questions as these: What happens when the right of publicity bumps up against First Amendment rights? How do we determine which state’s law applies to a particular decedent? And how far can states go in creating and controlling these rights? (Just last month, Washington State’s right of publicity was found by a federal court to be unconstitutionally broad.) Yet, because these are issues of state law, the litigation has not brought clarity on a national level.
Congress should step in and enact a federal right of publicity. In doing so, it should establish clear First Amendment protections and set forth a relatively short term for the right of publicity to survive death (perhaps 10 years). Most important, the law should provide a mechanism that allows people to opt out of marketing their identities after death. After all, sometimes the dead should be allowed to simply rest in peace.
