Ealier this week the Boston Globe ran this story about a bill passed by the Massachusetts Senate and currently before its House Committee on Ways and Means.
If the bill becomes law, people in Massachusetts—most notably those who, like Bill Cosby, have built up bankable personas over the course of their lives—will be able to treat their identities as pieces of property that continue to exist in the world long after they do. For 70 years after your death, according to the proposed bill, your identity will legally live on, and your heirs will be able to own it, or sell it, or sue anyone who uses it without asking.
A law that protects you from posthumous exploitation might seem like an intuitive move; after all, nobody wants to imagine their face, or their mother’s face, being used in a way they disapprove of. But the idea is also a relatively new one, and if the bill passes it would place Massachusetts on one side of a little-known shift in how the law treats personal identity in America. At the heart of the matter is the existential-sounding question of whether our public personas—the versions of “us” we construct during our lives—are an ownable thing that can be bought and sold, or whether, after we’ve left the stage, they vanish into the air and essentially belong to history.
Read the full news article here. A full-text version of the proposed law is here.
Professor Ray Madoff (Boston College) says in the Globe article that, “We are giving something up when we say identity is a privatized interest.... We’re giving up access to our cultural heritage.”
From a tax lawyer's perspective, I'd add that laws like the one proposed in Massachusetts also create a massive tax problem, too. If a celebrity's right of publicity is freely descendible, it likely will be subject to estate tax, too. See, e.g., here, here and here. I doubt that Massachusetts has taken the tax consequences into account.
The right of publicity has been developing since the 1970s. In some states, the right was created by statute, see Cal. Civ. Code § 3344, but it has also been recognized under the common law, see Carson v. Here's Johnny, 698 F.2d 831 (6th Cir. 1983). Originally, the right terminated on death, but the trend has been to extend the right past death. See Cal. Civ. Code § 3334.1 (adopted in 1984).
What I find somewhat unique about the Massachusetts statute is that it appears to apply to everyone. In this newly developing area of law, most statutes I have seen reserve the right to someone who had some level of celebrity at their death. See id. (limiting the statute to those “whose name, voice, signature, photograph, or likeness has commercial value at the time of ... death”).
Posted by: Ralph D. Clifford | August 22, 2012 at 10:01 AM
Don't forget choice of law. Imagine a dead Mass person (already we have definitional problems) whose works were published in NY (more defn probs). Does NY or Mass law apply? i hope the law is enacted--it will give me greaat discussion in my Conflicts class.
Posted by: Bill Reynolds | August 22, 2012 at 12:05 PM
Ralph raises a very interesting point and I wonder if the extension of the Mass. law to all persons (not just traditionally valuable personas) goes hand-in-hand with our trend towards YouTube, reality TV and everyone being a celebrity in their own backyard these days.
Posted by: Jacqueline Lipton | August 22, 2012 at 05:51 PM
This may be a good time to recall Andy Warhol's comment that : "In the future we will all be famous for fifteen minutes."
Posted by: Bill Turnier | August 22, 2012 at 09:50 PM
Yeah, there are some after-death rights of the person in German law. the keyword is:mephisto.
Posted by: eric engle | August 23, 2012 at 04:43 PM