Can a celebrity’s post mortem right of publicity enter the public domain?

Banking on a dead celebrity’s right of publicity being public domain is an extremely dangerous advertising practice. Rights of publicity are a suite of legal rights that have developed from invasion of privacy and trademark law since the early 20th Century. There is a web of state and federal laws that can protect dead celebrities– even celebrities from states like New York that specifically do not recognize a post-mortem right of publicity. And the laws can protect rights of publicity for as much as 100 years after death.

As a young lawyer, a common task was determining which state laws apply to a dead celebrity so to determine whether his or her name or image could be used for free.  The analysis is extremely detailed. Which law applies, New York (no protection) or California (broad protection)?  Does the use violate the celeb’s trademark or constitute a false designation under federal law?  An article in Slate today made some stunningly dangerous over-simplifications about how a dead celebrity’s persona is protected.

In my entertainment and sports law seminar, we spend a few classes examining the various ways of protecting a persona. A right of publicity protects the commercial value of a celebrity’s persona. A 1941 Texas case involving Davey O’Brien is my hands down favorite for explaining the basis for protecting a celebrity’s right of publicity. The Texas court gets the analysis wrong, and a dissent by Justice Holmes provides the foundation for modern ROP laws.

All American and Heisman award winner Texas Christian University quarterback Davey O’Brien signed a waiver permitting TCU to use his image in connection with matters involving the team. Pabst obtained a copy of his college photo on the sly and ran it in a promotional calendar for its beer. O’Brien, a teetotaler and mentor to young athletes, objected to the unconsented-to use of his name and image to sell beer.

The court, using invasion of privacy law analysis which is intended to protect people from undue publicity and embarrassment, decided that O’Brien sought the limelight as a pro athlete, thus giving up his right to privacy. Holmes dissented:

The right of privacy is distinct from the right to use one’s name or picture for purposes of commercial advertisement. The latter is a property right that belongs to every one; it may have much or little, or only a nominal, value; but it is a personal right, which may not be violated with impunity.

The identification of a “property” right in persona versus a “right not to be embarrassed” is the foundation of the law protecting post mortem rights of publicity. A property right can be licensed to other parties for a fee as when Lebron James is paid to lend his name to Nike for sneakers.  As a property right, a celebrity can also deny others the right to use his or her name commercially, as Davey O’brien had wished.

A property right can be inherited or bequeathed in a will, as when Einstein transferred his post mortem right of publicity to Hebrew University of Jerusalem.  However, as O’Brien found out, not all states recognize rights of publicity/post mortem rights of publicity and trademark law has special requirements that must be met before perpetual trademark rights can be obtained.  So there are holes to exploit.

But there’s a catch– many states do recognize post mortem rights of publicity and some of those states extend rights to dead celebs without regard for the law of the state that applies to the celebrity’s estate. These umbrella laws may protect celebrity estates from unauthorized commerical uses of the celebrity’s persona that “travel” through the state.  So to take advatage of the holes in post mortem rights of publicity law, the commercial use must stay inside the state that refuses to protect its dead celebrities. That means no use over the internet, no national or even regional broadcast spots, and no mobile advertising.