Op-Ed Contributor
The New Grave Robbers
By RAY D. MADOFF
Published: March 27, 2011
Newton, Mass.
CAN a wild wig and a bushy mustache be packaged and called an Albert Einstein costume? According to Hebrew University of Jerusalem and its American marketing agent, the answer is no — at least not without permission. The university says that when it inherited Einstein’s estate, the bequest included ownership of Einstein’s very identity, giving it exclusive legal control over who could use Einstein’s name and image, and at what cost.
Einstein is not the only example. While we might think of people like the Rev. Dr. Martin Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of our cultural heritage, available for all to use, the identities of each of them, and thousands more, are claimed as private property, usable only with permission and for a fee.
This phenomenon is fairly recent — and it’s getting out of control. For most of this country’s history, a person’s identity was not something that could be owned. While the unauthorized use of someone’s name or image was sometimes barred as an invasion of privacy, the right belonged to that person alone and could not be assigned to others. It was not until 1953, in a case involving baseball players licensing their images for use on baseball cards, that American law first constructed identity as a property interest that could be sold or licensed. This interest became known as the right of publicity.
Today the right of publicity clearly allows people to control the commercial use of their names and images during their lives. What happens after death is much murkier.
Throughout much of the world, the right of publicity ends at death, after which a person’s identity becomes generally available for public use. In the United States, however, this issue is governed by state laws, which have taken a remarkably varied approach. In New York, the right of publicity terminates at death; other states provide that the right of publicity survives death for limited terms. But in Tennessee (whose laws govern the use of Elvis Presley’s image, since he died there), Washington (home of a company that purports to own Jimi Hendrix’s right of publicity) and Indiana (where CMG Worldwide, which manages the identities of hundreds of dead people, is based), control over the identities of the dead has been secured for terms ranging from 100 years to, potentially, eternity.
In a case involving Marilyn Monroe, the California Legislature even created a retroactive right of publicity, establishing new private property interests in the identities of the long dead. (It didn’t work, because a court later found that Monroe was a resident of New York when she died. Her identity remains in the public domain.) This so-called descendible right of publicity has created a new kind of business: corporations that acquire and market dead people. So Rosa Parks sells Chevy trucks and Albert Einstein peddles everything from baby products to Apple computers. (And who knows how Elizabeth Taylor might be put to work now that she has gone to the other side?)
But say you wanted to write a play about a chance meeting between these two historic figures. Could you? While the play itself may be protected by the First Amendment, that doesn’t mean that the companies that manage Parks and Einstein might not attempt to assert control. Hebrew University has aggressively defended Einstein’s image, even blocking its use on a book called “Everything’s Relative.” And don’t expect to sell programs, posters, T-shirts or the other paraphernalia that might support your play without getting approval and paying whatever fee the owners of Parks’s and Einstein’s rights of publicity demand.
Contrary to what the owners of these identities claim, a right of publicity that continues after death does little to protect the reputations of the deceased. American law, unlike that in much of Europe, explicitly and uniformly provides that reputational protections — including libel and slander and the right of privacy — all end at death. The expansion of the right of publicity does nothing to change this.
The New Grave Robbers
Published: March 27, 2011
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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.
