ENDORSING AFTER DEATH.

AuthorGilden, Andrew

Table of Contents Introduction 1534 I. The Practices of Posthumous Endorsement 1542 A. Theories of Celebrity Endorsements 1546 B. The Risks and Rewards of Posthumous Endorsements 1550 C. Legal Scholarship on Celebrity Endorsement 1554 II. The Law of Posthumous Endorsement 1556 A. Lanham Act Section 43(a) False Endorsement Claims 1559 B. Infringement of Inherited Trademarks 1566 C. Lanham Act Section 2(a) and Marks that Suggest a Connection to a Dead Person 1568 III. The Perils of Posthumous Endorsement Law 1570 A. Continuity Problems 1571 B. Discursive Problems 1577 C. Dignitary Problems 1581 D. Some Modest Defenses 1586 IV. Potential Reform 1589 A. Disentangling Posthumous Endorsers 1589 B. From "Chain of Title" to "Privity and Power" 1591 Conclusion 1597 INTRODUCTION

The dead were extremely vocal in 2020. In January, fresh off her first gold-certified single in twenty years, Whitney Houston promoted an international hologram tour, (1) which was sadly cut short by the COVID-19 pandemic. (2) Throughout the pandemic, Houston (3) and other deceased celebrities such as Tupac Shakur, (4) Bob Marley, (5) Bob Ross, (6) and Jimi Hendrix (7) actively promoted branded face masks through their official, checkmark-verified Instagram pages. (8) As Black Lives Matter protests arose throughout the United States, the official Instagram accounts of Amy Winehouse, Marilyn Monroe, Muhammad Ali, Elvis Presley, The Notorious B.I.G., and John Lennon participated in #BlackoutTuesday, posting black squares meant to publicly signal solidarity with the movement. (9) And as the presidential election approached, disputes ignited around whether deceased individuals such as Ronald Reagan and Tom Petty would have supported the Trump Campaign. (10) Throughout all the major upheavals of 2020, endorsements by the deceased proved to be commercially, culturally, and politically valuable.

Intellectual property (IP) scholars have largely assumed that any exclusive sponsorship or endorsement rights granted to a person during their life must logically expire upon their death. For example, Professor Mark Lemley recently observed, "it is hard to argue with a straight face that a dead person is endorsing a product." (11) This widely shared intuition reflects an understandable logic: dead people cannot affirmatively put their stamp of approval on a product, service, or cause that postdates them. Ordinarily when we think of an individual endorsing a product, it involves some voluntary act of association or approval, (12) but this definition is hard to square with endorsements that occur long after that person has died.

Trademark and unfair competition laws, however, increasingly diverge from these scholarly intuitions and instead reflect the growing commercial and cultural practices of posthumous endorsement. Even if an individual has died, those who inherit their trademark rights retain the exclusive rights to control indications of endorsement by the deceased and to enter into lucrative endorsement deals in their name. (13) Numerous courts have allowed federal Lanham Act claims in which there is a likelihood of confusion as to sponsorship or endorsement by the decedent, their estates, or their successors in interest. (14) These three entities are often materially different from each other, but trademark law collapses them together in service of a thriving industry of posthumous endorsement. (15)

This Article evaluates the growing body of posthumous endorsement law and shows numerous ways in which this area of law risks misleading consumers, distorting discourse, and degrading the legacy of the deceased. First, posthumous endorsement law presents a continuity problem. (16) Lanham Act case law often overlooks the significance of property transfers from the decedent to their direct heirs to unrelated third parties and obscures just how differently situated each of these entities may be with respect to the decedent's surviving fans, family, and friends.

For example, the Estate of Marilyn Monroe, LLC--a successful posthumous endorsement litigant (17)--is owned and operated by individuals with no personal connection to Monroe. (18) Accordingly, her current rightsholders have little insight into what she would have thought about mask-wearing during a pandemic, Black Lives Matter, or the highly gendered commercial endeavors that she continues to be associated with. (19) When Marilyn Monroe's name officially appears on goods and services today, there is nothing to indicate to consumers who precisely is pulling the strings of posthumous endorsement or who benefits from the products she is urging customers to buy. (20) Trademark law typically prohibits transfers of a mark in gross--in other words, without the goodwill associated with the original owner (21)--but in the posthumous endorsement context, courts repeatedly lump together the decedent, heirs, and assignees where there is suggestion of endorsement by an undefined and nebulously labeled "estate." (22)

Second, posthumous endorsement laws present a variety of discursive problems--that is, they give rightsholders substantial control over the decedent's legacy and public meaning. (23) Posthumous assertions of trademark law allow a successor in interest to control the "official" statements of the decedent about a particular topic, and such official messaging has a tendency to produce a whitewashed, oversimplified, and maximally marketable portrait of the decedent. For example, in promoting the Whitney Houston hologram tour, the marketing company that purchased 50 percent of her estate emphasized that "Whitney was America's sweetheart, and the idea now is to remind people that that is what her legacy is." (24) Fans of Houston are certainly aware of alternative, less-than-sweet legacies associated with the singer. (25)

Moreover, where a decedent has a devoted base of political supporters, such as Ronald Reagan or Martin Luther King, Jr., whoever obtains that person's endorsement rights can hold a lot of leverage in political discourse moving forward. (26) Reagan's and King's legacies are both highly prized and highly contested, but trademark law allows family members and affluent assignees to weigh in on such legacies in their official voices. (27) In other areas of IP, in particular copyright and publicity rights, scholars have been critical of postmortem rights for allowing successors in interest to squelch celebrations, critical discussions, and academic research about a decedent. (28) Much less attention has been given to inherited trademark rights, which, unlike time-limited copyright and trademark rights, give rightsholders potentially perpetual control over the decedent's cultural voice. (29)

Third, posthumous endorsement rights present significant dignitary concerns. Through inherited endorsement rights, rightsholders can culturally resurrect a decedent with ongoing commercial value and give them a voice in connection with activities that they might have had little interest in supporting. (30) Legal scholars in other contexts have increasingly recognized that the dead retain autonomy, dignitary, and reputational interests after they pass. (31) These interests appear to be highly salient in certain forms of posthumous endorsement, in which rightsholders hold out the decedent as affirmatively supporting a product or cause.

In the #BlackoutTuesday context, deceased celebrities are being conscripted into a highly polarized political debate in a way they might have objected to, based upon the rightsholder's perception that their participation would increase the value of their brand. (32) In the COVID-19 face mask context, the deceased celebrity's name is being used to commercialize public health needs in a manner that potentially exploits both the decedent and the vulnerabilities of their fans. For example, in response to an Instagram post promoting Bob Ross face masks, one user commented, "[t]his seems very non Bob Ross. Profiteering during a pandemic using a deadman's [sic] likeness." (33) Posthumous endorsements risk reanimating and giving voice to the deceased, without their consent, in contexts that they may have objected to.

Although there are serious problems with posthumous endorsement rights, there are at least two compelling reasons not to completely abolish this growing body of law. (34) First, advertising and marketing scholarship has demonstrated that posthumous endorsements can be material to consumers. A substantial body of scholarship has shown that through consuming endorsed products, fans of the decedent can process their grief, maintain a sense of connection with the deceased, reconnect with cherished memories of their youth, and support the decedent's charitable causes and surviving family members. (35)

Second, posthumous endorsement rights in certain contexts can prevent exploitation of the deceased. Although posthumous endorsements do often reanimate the deceased without their consent, posthumous endorsement rights have been asserted in order to stop third parties from capitalizing on the commercial value of decedents. False endorsement claims have been brought on behalf of decedents of color who were the victims of various forms of lifetime discrimination and who continue to be exploited postmortem without attribution or compensation. (36)

This Article accordingly proposes a new framework for recognizing the potential value of posthumous endorsement rights while reining in their excesses. Rather than recognize endorsement rights in whatever entity inherits or purchases the decedent's trademarks and/or persona rights, courts should only recognize endorsement rights where there is both "privity" and "power." (37) A putative rightsholder should be required to show not just that they are the successor in interest to the name, image, or symbol being used to signal endorsement (that is, the privity requirement), but also that they are legally empowered to make binding...

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