March 29, 2011
Madoff: Federal Legislation Is Needed to Limit Post-Mortem Right of PublicityNew York Time sop-ed, The New Grave Robbers, by Ray D. Madoff (Boston College):
Can a wild wig and a bushy mustache be packaged and called an Albert Einstein costume? According to Hebrew University of Jerusalem and its American marketing agent, the answer is no — at least not without permission. The university says that when it inherited Einstein’s estate, the bequest included ownership of Einstein’s very identity, giving it exclusive legal control over who could use Einstein’s name and image, and at what cost.
Einstein is not the only example. While we might think of people like the Rev. Dr. Martin Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of our cultural heritage, available for all to use, the identities of each of them, and thousands more, are claimed as private property, usable only with permission and for a fee.
This phenomenon is fairly recent — and it’s getting out of control. ... Today the right of publicity clearly allows people to control the commercial use of their names and images during their lives. What happens after death is much murkier.
Throughout much of the world, the right of publicity ends at death, after which a person’s identity becomes generally available for public use. In the United States, however, this issue is governed by state laws, which have taken a remarkably varied approach. ...
The economic value of a dead celebrity’s image imposes another cost as well. Namely, rights of publicity, like all other property interests, are subject to estate taxes at their highest market value. This means that even if heirs choose not to market a person’s identity (perhaps to protect their loved one’s dignity), they nonetheless must pay taxes on the right. In some cases, that could compel heirs to market their loved ones’ identity in order to pay the taxes associated with it. Paradoxically, the values would likely be highest for those individuals who most coveted their privacy while alive (think J. D. Salinger). ...
Congress should step in and enact a federal right of publicity. In doing so, it should establish clear First Amendment protections and set forth a relatively short term for the right of publicity to survive death (perhaps 10 years). Most important, the law should provide a mechanism that allows people to opt out of marketing their identities after death. After all, sometimes the dead should be allowed to simply rest in peace.
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