Stayin’ Alive…and how

by Koka Tarini Siddhartha

We live in a world where everyone loves to know about what’s happening in a celebrity’s life, even though some might deny this allegation. Denial or not, these popular figures — musicians, writers, actors, performers, politicians and sportspersons — do have an impact on the masses, and their identities carry a certain value as well. However, are they of value only while they are alive? What happens when they die? (No, not whether they go to heaven or hell… what happens to their identity?)

Wait a minute, are you saying celebrities have rights even after they die?

To an extent, yes. Before we discuss ‘post-mortem’ or ‘posthumous’ rights, it is an absolute necessity to first understand what publicity rights are all about. Every person, famous or not, has personality rights. This includes two separate rights — the right to privacy (which most of us might have come across), and the right of publicity.

The right of publicity refers to the rights a person has over the commercial use of his/her identity, name, likeness, voice, signature and mannerisms. The need for this right is to prevent the exploitation or use of the person’s identity without prior consent. Since this right is over the identity of a person, which cannot be fixed in a tangible medium, and as there is no authorship, this right is not protected under copyright laws. (You can read about the basics of copyright here.)

The right to privacy is a personal right — this means the right dies with the person. For example, the right to vote also dies with the person. No one can come back from the dead to vote, can they? On the other hand, although the right of publicity is specifically given to a person, this right is a property right which can survive the individual, depending on the jurisdiction.

In India, there is a limited discussion of publicity rights. There are no laws in place and very few cases even discuss this right in the guise of Article 21 (protection of life and personal liberty) of the Indian Constitution. Most famously, superstar Rajinikanth was granted an injunction over the release of a film titled Main Hoon Rajinikanth on grounds that it violated his publicity rights (2014).  Other celebrities such as Sonu Nigam, Sourav Ganguly and Daler Mehndi have also successfully filed lawsuits to enforce their right of publicity.

The United States has more developed rights of publicity in comparison to both India and the United Kingdom. However, publicity rights in the United States are state laws. Thus, not each of the fifty states has a statute on publicity rights, and fewer states provide for a post-mortem right of publicity.

So, what exactly is a ‘post-mortem’ right?

A post-mortem or posthumous right of publicity is the right that a person has over his/her identity, name or likeness after his/her death. As already mentioned, not all fifty states in the United States extend protection via this right. Only twenty-two states have publicity rights statutes, of which New York and Wisconsin do not grant post-mortem publicity rights.

We have brought publicity rights to your attention as there have been some tragic albeit significant deaths in the entertainment industry this past year — Prince, David Bowie, Alan Rickman and Gene Wilder, to mention a few.

Take Prince, for example. He is famously known to have avoided releasing his music in the digital world, and is even said to have changed lawyers like he changed underwear. He aggressively protected his music and sued every bootlegging fan who recorded videos of his live performances. Prince died in April 2016 without a spouse or known children, leaving no will, either. What happens to the work and image of this legendary pop star who fiercely protected his work throughout his life?

The post-mortem right of publicity allows for a celebrity’s estate to make money off of his/her work and to avoid any kind of commercial exploitation in the form of advertisements or endorsements that use the celebrity’s identity. Even in the twenty-odd states that grant this right in the United States, it varies from state to state. California allows this right to be transferred only to the person’s heirs or successors as mentioned in his/her will for a period of seventy years, Indiana grants it for a hundred years, Tennessee grants it for ten years, which can be extended to perpetuity if used commercially, and so on.

Another twist to this right is that it is relevant where the person is domiciled. If a person is born in California but has New York as his/her domicile, (s)he will not have any post-mortem publicity rights as New York does not recognise it. That, dear readers, is the exact story of Marilyn Monroe. Further, some states (like South Carolina) extend this right only to celebrities.

What would happen with a celebrity like Prince?

In the midst of all the havoc caused by the myriad of publicity rights in the United States, the focus now shifts to Prince. This one-of-a-kind musician not only left no will or heirs; he also died in Minnesota, a state with no statute governing post-mortem publicity rights. Fearing the misuse of a name so big, the state legislators attempted to pass a cleverly titled PRINCE Act (Personal Rights in Names Can Endure Act), which was unsuccessful.

For the time being, his will is under evaluation to determine his rightful heirs, and the state of Minnesota is attempting to come up with an alternative way to protect Prince’s work and identity. This situation is similar to the death of Elvis Presley, which was also abrupt. The Tennessean musician died at a time when there were no publicity rights even during the lifetime of the person. In the years that followed his death, the state drafted a legislation which was specifically intended to protect Elvis’s identity and work.

Post-mortem publicity rights are not just an important source of revenue for the families and successors of a person, but they also help maintain the image built by the person throughout their life. In a few years’ time, the revenue generated after the death of a celebrity will become a taxable source (we will save this discussion for another post). On a related note, the next big thing to keep an eye out for is when Michael Jackson’s estate meets the Internal Revenue Service at a tax tribunal in 2017.


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