You’re famous. You die. Who profits from your image?
Marilyn Monroe died in 1962 but only recently lost control of her likeness; James Brown just died in 2006 but may already lose control of his.
That’s because states govern the right of publicity, and an individual's domicile at the time of death determines which state's law will govern. A federal court recently decided that Monroe was a resident of New York, not California, when she died, although she’d spent a lot of time in both places. While California law allows the right of publicity to continue for 70 years after death, in New York — fuhgettaboutit — your right of publicity dies with you.
The winners in the Monroe case are a group of photographers and copyright owners who want to distribute photographs of the star.
As for James Joseph Brown, Jr.: in Illinois, where the singer indisputably lived, the state legislature is considering amending a right of publicity statute to allow companies to sell license rights to images without being liable for customers’ illegal use of those images.
The winner in Illinois would be Bill Gates’ Corbis Corp., which owns copyrights or usage rights to more than 100 million images, including shots of celebrities (Brown among them). Corbis sells licenses to these images online with a warning that any commercial use of them requires an additional license.
While federal law governs most intellectual property rights (copyrights, patents and trademarks), the right of publicity is left to the states — possibly because it benefits individuals rather than the public interest. The states give publicity rights widely varying degrees of protection. Only 19 have laws explicitly recognizing the right of publicity; 11 others include the right under broad privacy laws. Of the 30 recognizing the right of publicity, only 12 sanction posthumous rights, with coverage ranging from 10 years after death in Tennessee — to 100 years after death in Indiana and Oklahoma.
Where there is a right to publicity, it usually works to balance and check copyrights. A copyright holder cannot disseminate a work depicting a person without a license from that person, who has a right of publicity. But the subject cannot profit from a work depicting himself without the copyright owner’s permission, either. And even if the copyright owner has a license from the subject to sell the work, the buyer cannot resell it without obtaining his own license from the subject.
So say, for example, that Ansel Adams photographed Paul McCartney. Neither artist would be able to sell the photo without getting a license from the other. And even if Adams got a license from McCartney to sell the picture to a collector, that collector could not sell the photo without getting his own license from McCartney.
There is a fair use exception to both the right of publicity and copyright. For example, journalists can publish people’s images without their consent if the images accompany news stories. But the consent of the copyright holder to those images is necessary — unless (for example) the image itself is the subject of the news article, commentary or criticism.
So, google “Paul Newman” and you’ll find a picture of the actor next to Reuters’ June 13, 2008 story headlined: “Friend confirms Paul Newman’s cancer.” Paul Newman did not have to give his permission for that picture to appear on the Internet. But the Reuters photo, which is not the subject of the article, is credited to dBTechno, because no one, not even Paul Newman, can profit from that work without the copyright owner’s permission.
Outside of the fair use exception, though, both copyright and right of publicity licenses are required to make a work legally marketable.
Copyrights always last 70 years after the artist/originator of the work dies. That's why the crucial question to anyone contemplating commercial use becomes: How long does the governing state permit the right of publicity to continue after a famous person has died?
Goodbye Norma Jean
In Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., 2008 U.S. Dist. WL 1922980 (C.D. Cal. March 17, 2008), a group of photographers and copyright owners who wanted to distribute photographs of Monroe claimed that she’d died a domiciliary of New York. Monroe’s estate claimed that, because her will was probated in California, that state's right of publicity law governs so that her devisees control her image for 70 years.
The estate’s arguments were undercut by the fact that, 40 years ago, Monroe’s executor had claimed that she was a resident of New York during probate for the purpose of avoiding California inheritance taxes. While this claim alone doesn’t usually decide the issue, the court reasoned that the estate would gain an unfair advantage if it were allowed to claim residence in two different states in two different causes of action to profit from both states’ laws. The court held that Monroe’s estate was estopped from now claiming she was a resident of California, rendering its right of publicity claim baseless.
The lesson here for estate planners seems straightforward: Just make sure famous clients establish residence in a jurisdiction that recognizes their right of publicity.
Unfortunately, it may not be so simple. Just look at the post-mortem threat to James Brown.
Illinois, by statute, recognizes a right to publicity for 50 years after death. Brown’s estate sued Corbis Corp., alleging (among other things) that the Seattle-based company is violating Brown's posthumous right of publicity by selling licenses to images of the artist without his estate’s consent and without regard to what purchasers do with those images.
A Cook County trial court denied Corbis’ motion for summary judgment and ordered further proceedings. The Illinois appellate court affirmed the denial of summary judgment, and the state Supreme Court declined to hear the case. So now the case is slated for further proceedings at the trial court level. (James Brown v. Acmi Pop Division, No. 1-06-0870, Ill. App. Ct. 4th Division, Aug. 2, 2007.)
But even while the Brown case works its way through the courts, Corbis lobbyists are working the Illinois state lawmakers. In February 2008, a series of amendments to the Illinois right of publicity statute was put forward in the state legislature. One of the proposed changes would allow the exact business model at issue in the Brown litigation.
The bill has been approved in the Senate and is set for a vote in the House. If passed, the new law would immunize corporations like Corbis from right of publicity suits. Individuals' ability to control their images would be diminished. And Brown’s estate could lose before its case is even tried.
What’s the Greater Good?
The Illinois legislation disturbs the proponents of publicity rights. Should we let corporations chip away at individual’s intellectual property rights?
Sure, it’s tempting to say that individual rights should give way to public benefit. But legislatures should not make such decisions lightly. Rights of publicity are enforced for many reasons, including: to recognize an individual’s contribution to society; to prevent others from exploiting celebrities; and to help celebrities protect their personas from undesired associations with goods or services.
You can’t blame photographers and copyright owners from wanting to profit unhindered from their pictures of Monroe. A full 40 years after her death, Monroe was number nine on Forbes’ 2007 list of “Top-Earning Dead Celebrities,” with her estate earning a reported $7 million.
The recently deceased Brown was “super bad” in his own way: He was dubbed “The Godfather of Soul” because his music helped gospel and rhythm and blues transform into soul and funk. Famous for his screaming vocals, kinetic dancing and innovative rhythms, Brown was a prolific singer, songwriter, band leader and record producer — all of which earned him the nickname “The Hardest Working Man in Show Business.” It’s likely Brown's image will keep working to earn money for some time. Someone's going to profit. Should it be Brown's heirs?
The Monroe and Brown cases show how states struggle to balance individuals’ deeply personal property rights against other people’s innovation and entrepreneurship. Perhaps the uniform law commissioners should step in and offer some advice in the form of a model state statute that all jurisdictions might adopt.
Until then, though, advisors to prominent clients, beware — and be sure to factor domicile into strategies based on how much an estate is worth and for how long.