State Senator and Law Professor Debate Posthumous Right of Publicity Bill Pending in Massachusetts Legislature

A recent radio interview provides useful insight into a burgeoning area of intellectual property law–posthumous rights of publicity.

Posthumous Rights of Publicity. In the United States, the right of publicity is aspect of privacy and intellectual property law that permits a person to prevent others from using his or her name or likeness for commercial purposes without permission. Unlike the laws governing patents and copyrights, which are generally federal statutory matters, the right of publicity is a creation of state law. Although the right of publicity of a living person is not a particularly controversial issue, several states now recognize a posthumous right of publicity, which survives the death of the individual in question and may be inherited or transferred. Such laws have generated debate because, for many purposes, they exclude from the public domain representations of deceased celebrities and other iconic figures. Many commentators question whether the cultural cost of restricting the public domain in this manner is justified, and some have pointed out significant conflicts of laws problems that arise from the non-uniform state laws across the country.

The Massachusetts Bill. In Massachusetts, State Senator Stanley C. Rosenberg has introduced legislation to create a posthumous right of publicity. The proposed law, Bill S.1713, is titled “An Act protecting the commercial value of artists, entertainers, and other notable personalities.” Bill S. 1713 applies to any “name, likeness, voice, signature, or an appearance or gesture that uniquely identifies” a “personality,” which is defined as “an individual whose identity has commercial value.” The proposed law would prohibit the unauthorized, posthumous use of the personality’s identity for a period of 70 years “(i) on or in goods, products or services, (ii) for the purpose of advertising goods, products or services or (iii) for fundraising.” The bill specifically provides that the following do not constitute commercial uses of a personality’s identity under the statute:

  • to use a personality’s identity as part of a news report or commentary or as part of an artistic or expressive work, such as a live performance, work of art, literary work, theatrical work, musical work, audiovisual work, motion picture, television program, radio program, or the like;
  • to use a personality’s identity in an advertisement, promotion or commercial announcement for any such news report, commentary or work;
  • to use a personality’s identity in the personality’s role as a member of the public where the personality is not named or similarly identified;
  • to use a personality’s identity in a manner that is incidental or de minimus; or
  • to use a personality’s identity in a manner that is permitted under the laws or the Constitution of the United States or the Commonwealth of Massachusetts.

The Senator’s Defense of His Bill. Boston radio station WBUR recently interviewed Senator Rosenberg, together with Boston College law professor Ray Madoff, to explore the implications of Bill S. 1713 for the families of deceased celebrities and for society at large.  In the interview, Senator Rosenberg explains that he first introduced a posthumous right of publicity bill in a prior legislative session at the urging of actor Bill Cosby, a constituent who lives in Shelburne Falls, Massachusetts. See ‘Right Of Publicity’ For The Dead (Aug. 30, 2012). Senator Rosenberg, who stresses that he is not a lawyer, stated that he sees the current state of Massachusetts law as “unfair, that people should be able to profit off the intellectual property, the lifetime of work, the characters, the voice, the likeness — everything that belonged to that celebrity — that was created by that celebrity over the course of a lifetime.” He opines that one should not be able to do to the dead what one may not do to the living (specifically referencing defamation). “Why,” he asks, “should they be allowed to lie about dead people if they can’t lie about them in life?”

The Professor’s Rejoinder. Professor Madoff, who is the author of the book Immortality and the Law: The Rising Power of the American Dead, takes a more circumspect approach, expressing concern about the implications of the bill for freedom of speech. She points out that American law traditionally makes a sharp distinction between the rights of the living and concerns about a person’s posthumous reputation and identity. Professor Madoff also notes that, “The creation of property rights raises its own problems that people are often not aware of.” In particular, she observes that the estate tax liability  than can accompany inheritance of a very valuable personality right may require the celebrity’s heirs to sell the right–thereby losing control of the decedent’s identity–“simply in order to pay the taxes associated with the ownership of that name.”

For More Information. The WBUR interview touches on many aspects of the debate about the public domain and rights of publicity, and is well worth hearing. For more information about Bill 1713, see the Boston Globe article “Who owns you after you die?” (Aug. 19, 2012). For further reading about the current state of Massachusetts law, see Massachusetts Right of Publicity Law, by the Citizens Media Law Project.




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