By: Edwin Paillant
The right of publicity has been recognized by statute and/or case law in the majority of the 50 individual states. Publicity laws grant individuals the right to control the commercial exploitation of certain aspects of their identity, such as their name, likeness, voice, signature, image, distinctive appearance, gestures, mannerisms, photograph or other indicia of identity or persona. See White v. Samsung Elecs. Am. Inc., 971 F.2d 1395, 1396 (9th Cir. 1992); Lohan v. Take-Two Interactive Software, Inc., 97 N.E.3d 389 (2018); Comedy III Productions, Inc. v. Gary Saderup, 21 P.3d 797 (2001); Sarver v. Chartier, 813 F. 3d 891 (2016). The realm of publicity rights in intellectual property is rather new and as such the Supreme Court has deferred to the states as how the rules should be governed. Thus, the states have differed on the following issues: (1) whether the right survives posthumously; and (2) whether the right of publicity is descendible and assignable.
The above mentioned lack of uniformity over this issue has led to only 24 states recognizing the baseline right of publicity to individuals. Of those 24 states, not all have recognized the right of publicity after death. There is a profound detriment towards individuals, primarily celebrities, for lack of a clear federal ruling. In recent years, for example, Prince’s estate has no say in whether individuals can use his likeness in advertisements because Minnesota, the place he was domiciled before his death, has refused to weigh in on this law. Compare that to California, who has a vast number of celebrities and has chosen to weigh in. Pursuant to Cal. Civ. Code § 3344.1, postmortem rights are available for seventy (70) years after death and expires after 2 years if the use becomes inactive. This favors the many celebrities that have passed that were domiciled in California when they die—Most notably Michael Jackson and Tupac Shakur. Legislation on this matter needs to be addressed as the lack of a federal rule that recognizes postmortem publicity rights with a specified period of years after the individual’s death is detrimental to the vast majority of creatives. Creatives that just so happen to be black.