Dead People’s Right of Publicity?

One of the blog posts I get the most responses and questions about is this article I wrote back in 2006 about the “right of publicity”, which is a celebrity/famous person’s right to protect the value of their likeness… it’s a kind of copyright of their face. Obviously this is something caricaturists are concerned with. Can an artist do a caricature of a celebrity and sell it, and not get into trouble over it with the celebrity in question? If you read the article the answer is, as with most questions about the law, “it depends”.

The other day I got an email asking about how right of publicity applies to deceased celebrities. Specifically, the question was about a caricature of Ludwig von Beethoven, and if it’s okay to do a caricature of him for commercial purposes. An interesting question, as right of publicity law does change in many states once a celebrity is deceased.

When it comes to someone who has been gone as long as Beethoven, there is no worry about right of publicity as his very work is in the public domain. Current copyright law states the copyrights on music, art, literature, etc., are the artist’s lifetime plus 70 years and 120 years for corporate ownership (it’s more complicated than that as factors like the date the work was created makes a difference, but for simplification we’ll go with that). However that does not apply to someone’s “right of publicity’. Since right of publicity is not a federal law but varies state by state, it depends on the state in question. Since none of that applies to Beethoven and it’s unlikely any of his decedents are actively attempting to claim any rights to his estate regardless, his likeness is in the public domain and you can do whatever you want with it. Do a caricature and sell it, use his name and likeness to advertise your piano moving business, etc.

The area of law regarding the rights of estates to control copyright and right of publicity is pretty confusing. In 2012 the Ninth District Court of Appeals ruled against the Monroe LLC, the owners of the Marilyn Monroe estate, saying that her likeness and name were in the public domain. The Monroe Estate, along with the Elvis Presley Estate, have reputations as the most litigious protectors of the right of publicity of their deceased clients. The Monroe Estate pursued many lawsuits against unlicensed images of Marilyn since her death in 1962. Most states do not recognize any right of publicity after the death of the person in question, but California does. They allow for the rights of a person’s name and likeness to pass on to their heirs or estates after their deaths. In 2005 Monroe LLC brought a right of publicity suit in Indiana against Milton Greene Archives LLC, claiming they were illegally using her image and name. Greene countersued claiming Monroe LLC did not own Marilyn’s right of publicity. The two cases were combined in 2007 and ruled on in district court, which found for Greene, saying that while California did have a law allowing for the extension of right of publicity past the death of the celebrity, it was passed in 1984 and did not apply to those who died prior to that year. As a direct response to that 2007 ruling, the state of California passed a bill that said that the inheritance of the right of publicity was retroactive, and applied to anyone who dies a resident of California, regardless of when they passed away.

This new bill caused Monroe LLC to request reconsideration of the Indiana District Court’s ruling. The District Court upheld the ruling and eventually the Ninth Circuit Court of Appeals also upheld the decision, although both for a different reason. California’s 2007 maneuver around the 1984-and-earlier exception to the inheritance of right of publicity was rendered moot because Marilyn was determined to be a resident of the State of New York at the time of her death. That was determined by a 2004 court decision won by… the Marilyn Monroe estate itself! After Monroe’s death her estate’s lawyer asserted in New York and California court that Monroe was a resident of New York when she died in order to avoid substantial California inheritance, estate, and income taxes. In 1994 a woman named Nancy Miracle claimed she was the daughter of Monroe, and sought 50% of Monroe’s estate under California law. Again, the Monroe Estate shot down that claim (disregarding the fact that Miracle is almost certainly NOT Monroe’s daughter) by asserting Monroe was a New York state resident at the time of her death, and California estate law did not apply. That assertion cost them, when later that same New York residency negated their ability to claim California’s laws on inherited right of publicity due to “judicial estoppel”, a law principal that precludes a party from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings. They’d already claimed she was a New York resident, and could not now claim she was a California resident.

As a result of all that, you would think we caricaturists can caricature and sell images of Marilyn to our hearts content! Not so. There are lots of legal angles that an estate can bring to bear to protect their right to milk their golden cow. For example The Lanham Act (which is federal trademark law) also includes an “unfair competition” aspect (Section 43(a)) that acts almost like a right of publicity law. Also, in the federal registration part of the law there is a section that deals with right-of-publicity-like rights (2(a)). At the bottom of it all is, as usual, money. The likeness of deceased celebrities like Marlyn and Elvis are worth multiple millions every year, and those that control these estates guard that with jealous abandon. Even if you think you have been sufficiently “transformative” with your caricature to be safe under “fair use” exception to copyright/right of publicity laws an estate could bring you to court and cost you so much money to defend yourself and get that favorable decision that it is not worth it financially. Many estates use their virtually bottomless bank accounts in that manner to prevent even what is probably acceptable forms of the use of their client’s likeness. Since the laws vary by state, you might be able to get away with selling it in one state but get a suit brought against you in another. Proceed at your own risk, basically.

By the way, just because an artist’s work is in the public domain does not mean that adaptations or works based on the originals are free of copyright. If you did a caricature of Beethoven, YOU own the copyright on that work. No one can use that caricature without your permission, even if the subject has no right of publicity rights.