The Right to Publicity After Death: Postmortem Personality Rights in Washington in the Wake of Experience Hendrix v. Hendrixlicensing.com

• Publication year: 2012

Washington Law ReviewVolume 36, No. 1, Fall 2012

NOTE

The Right to Publicity After Death: Postmortem Personality Rights in Washington in the Wake of Experience Hendrix v. HendrixLicensing.com

Aubrie Hicks(fn*)

"It's funny how most people love the dead. Once you're dead, you're made for life."(fn1)

I. Introduction

People have always been fascinated by fame. Many are drawn to celebrities, and more importantly, the money that often comes along with fame.(fn2) Celebrities often come from humble beginnings and work for many years before they attain any level of notoriety or earn any significant income. Accordingly, as the level of celebrity (and wealth) increases, so does the need for protection.

Celebrities and their capacity to earn money from their likeness are protected under the right of publicity or personality. The right of publicity or personality refers to "the inherent right of every human being to control the commercial use of his or her identity."(fn3) As there is no federally protected right of publicity, each state has created its own protections for this intellectual property right.(fn4) Generally, the right of publicity provides celebrities with legal protection in the form of a tort action, and allows them to retain control over the commercial use of their identity or persona.(fn5) Under right of publicity doctrines, celebrities can bring an unfair competition claim against any individual who infringes this important intellectual property right.(fn6)

While the states are fairly consistent in protecting the rights of living individuals, the level of protection for deceased celebrities varies among the states.(fn7) Some states allow the right to extend beyond death, while others refuse to recognize a postmortem right of publicity.(fn8) Even among states that do recognize a postmortem right of publicity, the right is protected to varying degrees, with some states providing explicit statutory protections and others providing only common law protections.(fn9)

Given the inconsistencies among the states, the continuing right to publicity after death has been the subject of much litigation over the last few years, especially in light of the fact that many celebrities continue to earn vast amounts of money even after death.(fn10) The most notable cases involve well-known celebrities such as Marilyn Monroe, Elvis Presley, and Jimi Hendrix.(fn11) In each case, the court refused to extend the right of publicity past death, denying intellectual property protections to each celebrity's estate.(fn12)

Notably, litigation involving Jimi Hendrix's personality rights led to the 2008 passage of the Washington Personality Rights Act (WPRA), which expanded the existing personality rights statutes to ensure that the rights were protected after death.(fn13) As a result, Washington State was regarded as having the strongest statutory protection of personality rights for deceased individuals.(fn14) But in February 2011, the District Court for the Western District of Washington held that the amendments to the Washington Personality Rights Act were unconstitutional.(fn15) In his opinion, Judge Thomas S. Zilly reasoned that the WPRA violated the Due Process, Full Faith and Credit, and dormant Commerce Clauses of the U.S. Constitution.(fn16)

This Comment explores the development of publicity rights and states' methods of protecting, or their failure to protect, the rights of deceased celebrities. Part II provides background on celebrity rights in the United States and examines the evolution of rights in Washington State. Part III examines the district court's decision in Experience Hendrix, L.L.C., v. HendrixLicensing.com, Ltd.(fn17) Part IV offers suggestions for ways in which the Personality Rights Act can be amended to ensure the continuation of publicity rights after death without violating the Constitution. Part V provides a summary and conclusion.

II. Background: The Right to Publicity

The right of publicity ensures that an individual has the right to control the commercial exploitation of his or her name, picture, and likeness in connection with the sale, advertisement, or solicitation of products and merchandise.(fn18) Courts originally recognized only a general common law right of privacy, which was extended to cover the use of a person's identity.(fn19) In 1953, Judge Jerome Frank introduced the idea of a "right of publicity" in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.(fn20) By 2000, many states had provided statutory protections for the right of publicity.(fn21)

A. Discrepancies in Right of Publicity Protections Among the States

Eleven states provide only a common law right of publicity, including Alabama, Arizona, Connecticut, Georgia, Hawaii, Maine, Michigan, Minnesota, Missouri, New Jersey, Oregon, and South Carolina.(fn22) Nineteen other states have enacted statutory measures to further protect the right of publicity, most notably Washington, California, Tennessee, and Indiana.(fn23) These states are notable because the statutory measures were enacted mostly for the protection of celebrities who live or lived in each state. For example, California's publicity rights statute was enacted because "California has an overriding interest in safeguarding its citizens from the diminution in value of their names and likenesses, enhanced by California's status as the center of the entertainment industry."(fn24) Similarly, Tennessee enacted its Personal Rights Protection Act of 1984 in response to litigation surrounding the estate of Elvis Presley.(fn25)

Even among the states providing statutory protections, there is much variation in these laws. Some statutes were created in response to specific cases in which courts refused to recognize a right of publicity or privacy.(fn26) Others were created "because other states had recently done so and it seemed the sensible thing to do."(fn27) Some statutes protect only a person's name or likeness(fn28) while others offer protection for a person's name, likeness, photograph, and voice.(fn29)

One of the main differences in each state's statutory approach is the way in which the state protects (or declines to protect) postmortem publicity rights. For example, California and Illinois both provide express postmortem statutory rights. While California offers protection for 70 years after death, Illinois protects these rights for only 50 years.(fn30) In contrast, states like Massachusetts and Rhode Island do not provide any explicit protection for postmortem rights in their statutes.(fn31)

The conflicting treatment of postmortem publicity rights is due largely to the way each state views the right to publicity. Some states treat the right as a property right while others treat the right as a privacy right. As such, the differences in privacy laws and property laws lead to different outcomes in each state.

1. Personality as a Privacy Right

The concept of a "right of publicity" has its origins in privacy law.(fn32) Although the concept of privacy can have many different meanings, for the purposes of understanding rights of publicity, the following definition articulated by the U.S. Supreme Court applies:[B]oth the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person. In an organized society, there are few facts that are not at one time or another divulged to another. Thus the extent of the protection accorded a privacy right at common law rested in part on the degree of dissemination of the allegedly private fact and the extent to which the passage of time rendered it private.(fn33) The Supreme Court uses a broad definition of privacy, encompassing the right to control the use of information about one's private self.(fn34) This broad definition is especially important to celebrities because they stand to lose or gain income depending on the level of control they have over their publicity rights.(fn35)

Courts have historically focused on the "indignity or mental trauma" associated with the nonpermissive commercial use of someone's identity.(fn36) Many well-known celebrities brought suit for damages they suffered from the commercial use of their identity; however, these were usually monetary rather than psychological damages.(fn37) Thus, the right of publicity developed into a commercial tort under unfair competition law.(fn38) Several states (such as New York, Utah, and Wisconsin) classify the right of publicity as a privacy right.(fn39) As such, the right is entirely personal and cannot survive after the individual dies.(fn40) It belongs only to a living person and cannot be transferred to heirs.(fn41)

In other states (such as Washington and Indiana), the right of publicity is recognized as a property right that encompasses the same rights and attributes as tangible property.(fn42)

2. Personality as a Property Right

Like personal property, the personality right "can be possessed and controlled to the exclusion of others. Its economic benefits can be realized and enjoyed. It can also be the subject of a contract and can be assigned to others."(fn43) As such, the right does not terminate at an individual's death and can be transferred to others, including heirs and entities.(fn44)

Among states that recognize the right of publicity as a property right, most find jurisdiction in the celebrity's domicile. This is due to the fact that courts have held that the economic harm...