Welcome back to Legal Geek. This week, we take a look at the wide variation in local standards for post-mortem rights of publicity thanks to a fun bit of legal research I performed this week for a friend.
https://archive.org/details/LegalGeekEp40
The right of publicity, also known as personality rights, protects an individual by providing the right to control how one's name, image, likeness, or other identity features are used in a commercial context. In short, companies cannot market products using endorsement-like materials where the person on the marketing products has not consented or licensed those rights to the company. These laws are relatively recent, as the first ones appeared around the 1950s.
The personality rights are based on natural rights and property rights theories, therefore being based on similar legal theories like copyright. Therefore, in many jurisdictions these rights survive death and pass to heirs, again, just like copyright terms. But in the United States, these personality rights are primarily based on state law, and our union of states vary wildly as far as how long these rights last after death.
27 states have explicitly established some form of rights of publicity, with a little over half these states setting forth the right in a statute or law that has been passed by legislators. The other states only have rights defined by common law, meaning judge-made law in case law decisions focusing on such claims. Perhaps not surprisingly, the standards vary dramatically across these states based on different judges and legislators making the laws, and the most dramatic differences come in post-mortem rights for heirs after the death of a person.
For example, the three states with the longest post mortem personality rights granted by statute or law are Indiana and Oklahoma, at 100 years apiece, and Tennessee, with an indefinite right so long as the persona is in continual use. However, these state laws have not been challenged or made by judges in courts, unlike bigger jurisdictions. But even those judges cannot agree, as California currently provides 70 years post mortem personality rights, Virginia 20 years, Florida 40 years, and New York none. It makes a real difference where you die, as that's where these rights are determined!
If that doesn't seem fair, that's because it is not. While some celebrities or luminaries like Albert Einstein benefit from decisions and law allowing continued control of the deceased person's persona, others like Nikola Tesla do not simply because they died in New York.
Bottom line - even though all 50 states can likely be implied to have rights of publicity in some form, the piecemeal state-by-state method of defining the term and operation of this property right has resulted in what appears to be a total mess. You might not like copyright's long term, but at least it is predictable. Perhaps it is time for the USA to consider standardizing the right of publicity as well, both during and after death.
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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