The right of publicity — the legal doctrine that protects the right of celebrities to control and profit from their names, likenesses, and other aspects of their identities — is a familiar topic for us here. But it can be a more complicated subject than we sometimes give it credit for. Unlike copyright and trademark law, which are (mostly) defined by federal statutes that provide for consistent nationwide rules, the right of publicity is exclusively a creature of state law. And, thanks to the patchwork of inconsistent and often confusing state laws that have evolved over the years (with heavy influence and lobbying from the heirs of particularly valuable/merchandisable celebrities, like Elvis Presley and Albert Einstein), its application to the dearly departed can get pretty quirky. For example:
Are you a celebrity who died as a California resident? Great — your heirs can exclusively exploit your name and likeness for another 70 years! Oh, were you actually a New York resident when you died? Just kidding, then, your heirs are totally out of luck, and unauthorized t-shirts with your face will be hitting stores shortly. That is, unless, your heirs sue in Washington or Indiana, which purport to apply their right of publicity laws to any individual, regardless of whether the celebrity’s state of domicile recognizes the right. Unless, of course, the federal courts decide that those laws are unconstitutional (a conclusion reached by a Washington district court in a 2011 case involving Jimi Hendrix; the Ninth Circuit will be making its own ruling soon). And even among those states that expressly recognize a post-mortem right of publicity, there is broad disagreement about the length of protection afforded, the retroactivity of the statutes, and a whole host of other issues. Got it? Don’t worry, nobody else does either.
Just ask the lawyers for the estate of Marilyn Monroe, whose recent unsuccessful right of publicity lawsuit could be “Exhibit A” in renewed effort to enact a federal right of publicity law.
Last week, the Ninth Circuit held that Monroe’s estate could not assert rights in the actress’ name and likeness under California law — rights that reportedly fetched $27 million last year alone. The reason, of course, was not that California law doesn’t recognize a post-mortem right of publicity (it does), but because California’s law only applies to celebrities who were domiciled in California at the time of their death. Monroe’s estate now makes that very claim. The only problem was that for years before, the estate represented that Monroe had died domiciled in New York, not California — apparently to avoid paying inheritance taxes to the Golden State. Relying on the doctrine of judicial estoppel, the Court held that Monroe’s estate could not have it both ways — representing that the actress lived in California only when it suited the estate’s present purposes. Recalling Monroe’s oft-quoted line “If you’re going to be two-faced, at least make one of them pretty,” the Court noted that there was “nothing pretty” about the estate’s “about-face on the issue of domicile.”
The Monroe estate’s latest legal setback may be particularly frustrating to its lawyers, given that California’s posthumous right of publicity law was recently amended to apply retroactively (i.e., to celebrities like Monroe, who died before the post-mortem right of publicity law was enacted) — specifically in response to previous right of publicity decisions that were adverse to the Monroe estate.
However one might feel about the question of whether Marilyn Monroe’s heirs, in particular, get a monopoly on the right to use her name and likeness now that she’s gone, the fact that so much turns on the vagaries of state law (and that these state laws wind up in flux seemingly based on the needs of one dead celebrity at a time) should give us pause. For those celebrities fortunate enough to die with their licensing value intact, name and likeness merchandising is big business — and with many transactions now taking place online, that business is more national in scope than ever.
The obvious answer is a federal right of publicity law, just like we have for copyrights and trademarks. A uniform law will smooth out the state-by-state vagaries and provide both business owners and celebrities with certainty. Until that law arrives, though, you can look forward to more tricky case-by-case decisions like the one just handed down about Marilyn Monroe — and to lawyers jetting around on a nationwide quest for the most favorable state law available for any given lawsuit.