Putting Real People in Your Made-Up World Part Three: The Right of Publicity from Abe to Beyonce
Personality rights are complex as hell. If you are reading this within a week of me posting it, then this blog post will provide an overgeneralized summary of some really complex stuff. Overgeneralized to the point that, beyond giving you a broad idea of the current state of affairs, it won’t be good for much. This issue is governed by state laws, so the answer to specific questions will be determined by when and where people died and/or were legally domiciled at the time of death. Even when you know that, the scope and nature of each of the state statutes varies. On top of that, some people like to claim nonexistent personality rights on behalf of dead celebrities, essentially sending demand notices that they have no legal right to send. Any specific decision will have to be based on legal advice regarding the specific person in question.
If you’re reading this more than a week after I wrote it, it’s probably outdated. This is an area of law in the midst of huge changes.
Personality Rights Overview
Personality rights are separate from the “real people” rights discussed in the first two parts of this series. The main issue that arises when using celebrities, live or dead, is the “right of publicity.” Here’s the conundrum:
Last year, Pepsi paid Beyonce $50 million dollars to endorse Pepsi. Apparently, Pepsi can sell hundreds of millions of dollars worth of Pepsi if Beyonce tells people to drink Pepsi. This makes absolutely no fucking sense to me whatsoever, but Pepsi knows a lot more than I do about how to sell Pepsi, so there it is. It’s worth $50,000,000 to have Beyonce say:
“Drink this shit.”
With that number in mind, it’s easy to see why Beyonce probably isn’t going to guest-star in your novel for free. It’s also a safe bet that Pepsi was paying $50 Million bucks for something. That “something” is Beyonce’s right of publicity. Her exclusive right to commercially exploit all of her Beyonceness. Because she’s the Beyoncest. It’s also worth bearing in mind that we are talking about a woman who tried to trademark her daughter’s name, so she’s probably not giving much up for free.
And that seems fair. I mean, she did something to put herself in a position to make ungodly sums of money for busing out a “drink this shit.” I don’t really understand what, but she must have done something. And, as much fun as it may be to have Beyonce and Hillary Clinton teaming up with Lil’ B and Carl Sagan to fight space zombies, it probably shouldn’t be free. Part of what you would expect to be selling that book is the name recognition; i.e., a hint that Beyonce was saying “read this shit.” Unless you have a few million dollars lying around, that isn’t going to happen.
The Legal Stuff:
The right of publicity basically means the right to control the commercial use of an individual’s “name, likeness, or other recognizable aspects of one’s persona.” It gives an individual the exclusive right to license the use of their identity for commercial promotion. The term “right of publicity” is misleading. A more accurate title would be: “a whole bunch of things that nobody has really figured out that mainly mean your ass can be sued for using a famous person in your book. And sometimes a not famous one, too.” But the legal profession seems to have settled on “right of publicity,” so that’s what I’ll call it. Understanding that right would be a legal mobius loop, because you would have to research exactly how each of the fifty states handled the question and, by the time you were done with No. 50, the law in No. 1 would likely have changed. For now, a serviceable (which is to say, broad) definition comes from Cornell University’s Legal Information Institute:
In the United States, the right of publicity is largely protected by state common or statutory law. Only about half the states have distinctly recognized a right of publicity. Of these, many do not recognize a right by that name but protect it as part of the Right of Privacy. The Restatement Second of Torts recognizes four types of invasions of privacy: intrusion, appropriation of name or likeness, unreasonable publicity, and false light. See Restatement (Second) Of Torts §§ 652A – 652I. Under the Restatement’s formulation, the invasion of the right of publicity is most similar to the unauthorized appropriation of one’s name or likeness. See Restatement (Second) of Torts § 652C, comments a & b, illustrations 1 & 2.
In other states, the right of publicity is protected through the law of unfair competition. Actions for the tort of misappropriation or for a wrongful attempt to “pass off” the product as endorsed or produced by the individual help to protect the right of publicity. See Unfair competition.
Nineteen states have some form of “right of publicity” law. On top of that, some federal laws can also be implicated. Some names and other aspects of identity can be trademarked, and if a claim arises that someone’s identity is used to falsely imply endorsement of a product, Section 1125 of the Lanham Act also provides a cause of action and remedies.
As far as the living are concerned, you do not want to have living celebrities (by which I mean even remotely famous people) as characters in your book. Unless other safeharbors apply (and the analysis is not entirely unlike that used for “fair use” generally, but need to be looked at completely separately), just don’t.
Things aren’t much better when it comes to dead celebrities
Unlike claims about defamation, which infringe personal rights, the right of publicity is considered a property right. Among other things, that means it can be sold and, in some cases, transferred on the celebrity’s death. Muhammad Ali’s identity was recently sold for $62 million. There have been a few rounds of contentious litigation about Albert Einstein’s likeness.
Marilyn Monroe has been litigated and it was determined she was a resident of New York when she died, so she’s fair game. If she’d been a resident of California, however, she would not be.
Interestingly, one of the states on the forefront of the right of publicity war is Indiana. Though it’s more famous for growing corn and soybeans than celebrities, Indiana is home to CMG Worldwide, a huge celebrity rights licensing company. CMG owns James Dean, Ingrid Bergman, Jack Kerouac, Duke Ellington, Jesse Owens, and even people like Frank Lloyd Wright, Amelia Earhart and Malcolm X. Enormous sums of money are paid for the right to own and use those dead celebrity names, which means enormous sums of money will be used to defend the right to keep doing it.
How long does the right of publicity last?
As one might surmise from watching Abraham Lincoln Vampire Hunter, it does not last forever. Well, that, and if someone wanted to do a movie about Michael McDonagh Vampire Hunter, I’d probably be cool with that, too. But get my permission first. As to how long, though, the answer is another “depends.” It is not, as some people believe, a set “50 years.”
In states with statutory right of publicity laws, those laws include a term. The term ranges from as few as twenty years in Virginia to a century in GMG’s home state of Indiana. Unsurprisingly, Elvis’ home state of Tennessee, allows the right to continue as long as it is being exploited. As long as there are Elvis impersonators, Elvis will be protected. Showing how much of a moving target this is, California used the copyright law term when it adopted its right of publicity statute, which, at the time, was fifty years from death. When the term of copyright was extended to 1998, California extended its statutory right of publicity as well.
Going back to where we started, the answer to your question will depend on where the person was domiciled at the time of her death. Even then, there are a few companies claiming to have the right to sell Marilyn Monroe’s publicity rights, and they will be happy to send nasty letters claiming that, despite the fact that the lack of those rights has already been determined.
Bottom Line: there are no safe rules of thumb to apply to this question. Celebrity characters will likely fall somewhere on a spectrum between Beyonce and Abraham Lincoln. Where they fall on that spectrum, and if they’re closer to Beyonce than Abe, where they were domiciled when they died will determine the extent of their publicity rights. From there, it is a case-by-case question.