How to Make Money from Dead Celebrities
As I discussed in this recent blog, the Julia Child Foundation sued Airbnb for running a promotional contest featuring the famous chef's name and vacation home. In that case, the foundation wanted to avoid anyone making money from her famous name.
In many cases, however, the heirs of famous people want to use their names, works, and images to make as much money as possible.
The Law of the Land
As I noted in the earlier blog, publicity rights are a matter of state law. Generally, the relevant law is that of the place where the person was domiciled at the time of his or her death.
At least 30 US states recognize some form of publicity right for living people, but fewer recognize publicity as a property right that can be passed down to heirs.
Other forms of intellectual property are governed by federal law and can clearly be passed down to heirs in all states and most foreign countries.
For example, "works of authorship," such as books, poems, and personal letters are protected by federal copyright law. For works created on or after January 1, 1978, the term of copyright protection lasts for 70 years after the death of an author. Thus, an author's heirs can assert a claim for copyright infringement.
The copyright for a photo of a celebrity usually belongs to the photographer rather than the celebrity, because the photographer is considered the "author." A celebrity selfie would, of course, belong to the celebrity.
Trademarks are governed by both federal and state law. Under the federal Lanham Act, a trademark is a word, symbol, design, or other designation that indicates the origin of goods or services.
A trademark can last "forever," as long as it's in active use. Old trademarks that are still valid include those for Bass Ale (1876) and the character of Tarzan (1923).
Some courts have held that celebrities can sue under the Lanham Act when others use their names or images to falsely suggest that they endorse products or services.
The recent case of A.V.E.L.A., Inc. v. The Estate of Marilyn Monroe, LLC, involved a company that sold goods bearing images of Marilyn Monroe, who died in 1962. Monroe's estate owns a number of registered federal trademarks for marks that include the words "Marilyn" and "Marilyn Monroe" and also claims a common law trademark in the image of her lip print.
Monroe's estate claimed trademark infringement by A.V.E.L.A. A.V.E.L.A. sought to have the claim dismissed, but a New York federal court let the case continue.
The court noted that:
Here, the Monroe Estate has alleged that it owns the rights to Monroe’s name, likeness, and persona. (cite.) In this District, these are considered “trademark-like interests” that are protected under the Lanham Act.
If you're the heir to a celebrity, there are a variety of theories under which you can try to monetize the celebrity's works and image.
If you want to use a celebrity name or image to promote your own products or services, you need to be aware of the legal risks involved and you need to pay for a license.