Publicity Right of Privacy Law and Deceased Individuals

• Jurisdiction: Maryland

IV. PUBLICITY RIGHT OF PRIVACY LAW AND DECEASED INDIVIDUALS

A. General Rules

Some state laws recognize that the decedent's publicity right of privacy may be transferrable to the person's heirs or to others, along with other property rights in the person's estate. Those rights may also be assignable to others before or after the person's death. But this was not always the case.

In Maritote v. Desilu Productions, Inc., the Seventh Circuit Court of Appeals dismissed arguments by the administratrix of the estate of Al Capone that the property rights of Al Capone, including his name, likeness, and personality, passed to his heirs upon his death.⁶⁷ The court denied the requested relief for invasion of privacy, citing Prosser's Privacy. other courts have reached similar conclusions, some noting that the decision to exploit one's name and/or likeness is a personal one.⁶⁸ As Prosser wrote in his Law OF Torts treatise in 1971, a person's publicity right of privacy "does not extend to members of his family, unless, as is obviously possible, their own privacy is invaded [ ]. The right is not assignable, and while the cause of action may or may not survive after his death, according to the survival rules of the particular state, there is no common law right of action for a publication concerning one who is already dead."⁶⁹

Over time, courts have recognized that a person's right to control the use of his or her name and/or likeness involves more than protecting against the harm to that individual's feelings, a harm that would obviously extinguish upon the death of the person. Some courts have since recognized that a person's name, likeness, and other aspects of his or her persona may be commercialized, and the commercial value does not extinguish merely because of the person's death.⁷⁰ This approach has become the modern view.⁷¹

Thus, where a person resides and dies may be an important consideration when dealing with privacy and publicity rights. For those who often split their time between states, such as celebrities who spend time and have residences in both California and New York, the consideration of a state's laws regarding the descendability of privacy/publicity rights may be an important factor. For example, New York does not recognize a postmortem right of publicity under its publicity right of privacy law;⁷² however, California law, as noted above, does.⁷³ Where one is domiciled at the time of his or her death may be crucial in determining whether his or her publicity right of privacy may continue to be exploited after death. Just as important as choosing where to live (or die, as the case may be) in terms of exploiting publicity rights, a person must make a wise decision concerning who will be entrusted to safeguard and/or exploit his publicity rights after death.⁷⁴

It should be noted that Restatement (Second) of Torts § 652I, entitled Personal Character of Right of Privacy, provides that, "[e]xcept for the appropriation of one's name or likeness, an action for invasion of privacy can be maintained only by a living individual whose privacy is invaded." [emphasis added]. No state appellate court in Maryland has...