Rights of Publicity After Death: A Nationwide Survey

Out of law school I moved to another state and started a job where I was promoted to Marketing Director, rapidly building a skillset of creating legal marketing copy that got the message across to non-lawyers while also remaining within ethical bounds. You'd be surprised how difficult it is to use plain language without being misleading, because legalese is meant to be very precise. But that's a post for another time.

A colleague gave me some marketing work recently which required examining various types of intellectual property protection that his target industry could use. Because sponsorship and promotion by athletes was involved, Rights of Publicity inevitably came up.

It had been a while since I'd really dug into Rights of Publicity. Maureen Collins, the professor I owe a great deal of my legal communication skills to, first introduced my IP-centric legal writing class to the concept as 1Ls in an assignment based on a real-life dispute between a celebrity and an insurance company. And the difference between law school assignments and marketing copy is that the law school assignment captures only the concepts in the fact pattern, whereas your legal advertisement wants to capture the attention of the audience by giving them a taste of your expertise. In that strain, I did some research on Rights of Publicity in the United States- a type of intellectual property that is not necessarily well-understood by IP lawyers outside of the talent management industry.


Overview

The "Right of Publicity" or the "Right of Personality" or "Personality Rights" is the right of an individual to control the use of her name, likeness, or persona. The main source for this right is the common law right to privacy.

However, there has also been some success in construing certain aspects of someone's identity as protectible under the Lanham Act, 15 U.S.C. § 1125, as a false designation of origin. Waits v. Frito-Lay is a pretty exciting read, as far as reading cases goes, but I'll spoil the plot for you: Tom Waits vociferously opposes artists who endorse products, so Frito-Lay gets a Waits sound-alike to endorse their new Doritos; the Ninth Circuit decided this was a false designation. Again, it's not coextensive with the right of publicity, and it's not clear what limits there might be on using Lanham Act protection for a celebrity's identity after their death.


Why should I care?

If you are talent, or manage talent, you should care how long after death the right of publicity lasts. Being famous long after death is not just reserved for emperors and the literati anymore; and cashing in on a famous persona is getting more sophisticated every day.

Don't believe me? Let my good friend Tupac explain it.

Attorneys and tax accountants planning the estate of a celebrity need to be aware of what will happen to the talent's image after they die, as well as advertisers and licensors who want to use the persona of a person long passed.


Resources

Jonathan Faber's rightofpublicty.com was a great help in getting a birds-eye view of this data.
Mark Tratos and Steven Weizenecker of Greenberg Traurig wrote an amazing article for the ABA Entertainment & Sports Lawyer magazine which GT hosts on its website. The bulk of the article is a useful 50-state survey on Rights of Publicity and Invasion of Privacy.


The Numbers

A statute of repose is only going to exist for a state or territory that has a right of publicity statute, so states whose right of publicity lies in common law, misleading advertising, or false designation statutes will be excluded from the list.

The state name will be listed before the colon, followed by the time when the right will terminate with a citation to the primary source.

California: 70 years after death
Illinois: 50 years after death
Indiana: 100 years after death
Kentucky: 50 years after death
Massachussetts: death
Nevada: 50 years after death
New York: 50 years after death*
Ohio: 60 years after death
Oklahoma: 100 years after death [WARNING: Rich-text download]
Pennsylvania: 30 years after death
Tennessee: 10 years after death
Texas: 50 years after death
Virginia: 20 years after death
Washington: 10 years for "individuals", 75 years for "personalities"**

*This is a recent revision to New York State Law and is much-welcomed by New York's national celebrities.

**"'Personality' means any individual whose name, voice, signature, photograph, or likeness has commercial value, whether or not that individual uses his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods, or services." Wash. Rev. Stat. §§ 63.60.020


Conclusion

The main difference between the Greenberg Traurig article and my new compilation is the recent New York statute, which the article lauds in lieu of a unified federal approach. At any rate, the various state approaches to rights of publicity definitely necessitate a sophisticated team when dealing with estate planning or artist management of valuable talent.

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