Here is my short article about the Massachusetts right of publicity bill published this week by the Transatlantic Technology Law Forum Newsletter.
The bill is S.2022, An Act protecting the commercial value of artists, entertainers and other notable personalities. The Act would give celebrities a post mortem right of publicity. Right of publicity is the right which protects an individual against unauthorized use of his or her identity for commercial purposes.
Some states, such as California, have statutory laws recognizing that this right survives the death of the individual. The Massachusetts law would, however, provide such post mortem right only to celebrities. Other states recognize a post mortem right of publicity at common law. For example, the Arizona Court of Appeals recognized last April a post mortem right of publicity for everyone, famous or not famous In the Matter of the Estate of Lois Catherine Reynolds (Ariz. Ct. App. April 24, 2014).
In this case, a brother and sister wanted to prohibit their sister Robin to use two photographs of their mother, Lois, who died in 2010, to illustrate two posts about Lois on her blog. They sued Robin, claiming that, by posting the photographs of their mother, Robin had violated the right of publicity of their mother. The trial court dismissed their case, but the Court of Appeal held that Arizona recognizes a post mortem right of publicity. The Court of Appeals explained further that this right is “descendible, and a claim for violation of the right survives the death of the holder. It is not limited to celebrities and it need not be exploited during life to be asserted in death.” The Court of Appeal concluded, however, that Robin had not violated her mother’s the right of publicity “because [the blog posts] are expressive works that do not employ [the mother]’s name or likeness for purposes of trade.”
New York does not recognize post mortem right of publicity. As I wrote on the EASL blog a few years ago, the S.D.N.Y. ruled in 2007 that Marilyn Monroe could not have passed any postmortem right of publicity through the residuary clause in her will, because she did not own any post mortem right of publicity at the time of her death in 1962, Shaw Family Archives Ltd v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y. 2007). This decision led to the introduction of a bill, A08836 to amend New York Civil Rights Law §§ 50, 51. It would have provided a postmortem right of publicity to personalities, but was never enacted.
Image is Street Party – 142 High Street – Street, Somerset courtesy of Flickr user Elliott Brown, under a CC BY 2.0 license.
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