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 (more…)