Many photographers have been contacted by the estates of celebrities who have passed on to the silver screen in the sky, for portraying said celeb in a photo recreation, such as Marilyn Monroe look-a-likes. Such contacts have usually resulted in transfer of money from photographer to estate. One friend of ours was contacted because without trying, he evoked the image of Marilyn by running an ad with a blonde model having her white dress billowing as if it was being blown up by a gust of wind. It wasn’t meant to be Marilyn, but just happenstance at the way the shoot progressed. In that light we though you all would find this post interesting, here in, The Copyright Zone.
Dead celebrities (“Delebs”) typically leave behind estates and/or children who seek to extract every dime remotely generated by the dear departed. Many such grieving relatives find themselves in the enviable position of receiving checks in the mail rather than having to learn a trade. The unauthorized use of a dead celebrity for the purposes of promoting or advertising the sale of a product, service or organization will likely result in at the least, a very stern lawyer’s letter and more typically – a law suit.
Various states have their own laws on when the right of publicity “owned” by such persons ends. Indiana is a state with a very long (I believe the longest) post-mortem period meaning the right of publicity continues well after death – indeed for 100 hundred years after the body goes cold. Reader to simply remember as: “No use for commercial purposes without written consent from person with legal authority to give such consent period”.
A Federal Court in Indiana just dealt with the “longevity” issue in a case concerning the heirs of the deceased gangster John Dillinger (Dillinger, LLC v. Electronic Arts) The case involved the use of the name “Dillinger” and various associations with the name for weapons and such in video games manufactured by Electronic Arts. The law sued under came into existence in 1994. Simply put the court ruled that the right did not attach to anyone who died before the time the law was enacted – 1994. This decision is similar to the NY case where the Federal Court ruled in a case involving the much more attractive Marilyn Monroe (Shaw Family Archives v. CMG Worldwide). Ms. Monroe died (or was she murdered?) prior to the enactment of the NY Statutes addressed to the right of publicity thus the NY Court ruled that there were no post mortem rights to publicity in Marilyn’s image, portrait or likeness as CMG, the agent for the Monroe estate, had alleged. The Indiana Court dealt the Dillinger folks a similar, fatal (couldn’t resist) blow.
Interestingly, the Indiana Court in the Dillinger case held that video games are “literary works” and such “literary works” are exempted from the statute. English translation: So even if the Dillinger right of publicity still existed (which it did not) literary works are specifically not covered by the Indiana law and so the Dillinger gang would have lost this legal battle no matter what. Reader to remember as: “rubbing salt into wounds of Dillinger lawyers”.
It is likely that other states while not bound to follow either or both of the above rulings, will. Two respected Courts, separated by 719 miles and representing 4 major league baseball teams agreed with each other. Now if faced with adjudicating the correct way to make pizza or hot dogs, we believe Judges from both courts would be acrimonious and likely would resort to violence.
