We’ve discussed, a few times now, the serious problems with the rise of publicity rights as a new form of intellectual property law, driven at the state level, which is severely stifling speech and culture in a variety of ways. In some states it’s worse than others and an article at the NY Times highlights how problematic it is in states that allow publicity rights after death. He notes that the estates of Albert Einstein and Rosa Parks have been particularly aggressive in enforcing such laws:
This so-called descendible right of publicity has created a new kind of business: corporations that acquire and market dead people. So Rosa Parks sells Chevy trucks and Albert Einstein peddles everything from baby products to Apple computers. (And who knows how Elizabeth Taylor might be put to work now that she has gone to the other side?)
But say you wanted to write a play about a chance meeting between these two historic figures. Could you? While the play itself may be protected by the First Amendment, that doesn’t mean that the companies that manage Parks and Einstein might not attempt to assert control. Hebrew University has aggressively defended Einstein’s image, even blocking its use on a book called “Everything’s Relative.” And don’t expect to sell programs, posters, T-shirts or the other paraphernalia that might support your play without getting approval and paying whatever fee the owners of Parks’s and Einstein’s rights of publicity demand.
The article goes on to note that the main reason often given for the right to publicity — that it protects the reputations of the deceased — does not seem to be supported by the facts, and notes that defamation law in the US ends at death. So, you can still freely defame a deceased American, no matter what publicity rights laws say.
Commenting on this article, law professor Peter Friedman makes a bunch of really good points about how, just because you can make money off of something, it doesn’t mean it should be property:
Extending control over the identity of important people to their estates after death is, I think, to mistake how culture and art work and to elevate property rights to an importance that does us very little good. The identities of famous people as varied as Einstein, Elvis Presley, and Marilyn Monroe become part of our culture’s language. That cultural meaning then becomes part of the language of our cultural conversations, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that culture and art thrive on. To remove the identities of dead people from this language in the absence of payment for their use would substantially damage our culture.