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June 30th, 2014
Gone But Not Forgotten – States Move to Expand Post-Mortem Rights of Publicity
Legal protection for individuals' rights of publicity continues to grow, even when the individual in question has died.
Earlier this year, the Arizona Court of Appeals ruled in Reynolds v. Reynolds, 42 Med. L. Rptr. 1687 (2014), that Arizona common law rights of publicity extend to claims by the estates of deceased persons. While the court held that there was no commercial use of the deceased person's name and likeness in the context of the acrimonious family dispute before it, the Court found that Arizona law already provided such protection, and that it was not necessary for the deceased person to have exploited their right of publicity during their life. Representatives of any deceased Arizona citizen can therefore sue for any unauthorized commercial use of the deceased's name and likeness.
In addition, on June 12, 2014, the Massachusetts Senate passed a bill (S. 2022) approving a similar right of publicity for deceased Massachusetts residents. The bill would apply to a person's name, likeness and character only if it has commercial value, but would extend protection to the heirs or any entity representing the deceased celebrity for 70 years after their death. The bill, which is available here, must be approved by the Massachusetts House, which voted on June 16, 2014 for the bill to be taken up by the Ways and Means Committee.
Such post-mortem protection is rapidly becoming the norm. If Massachusetts passes this bill, it will become the 23rd state to provide post-mortem protection for rights of publicity. The application of laws protecting the right of publicity to advertising and marketing campaigns, particularly on the Internet, is notoriously tricky, requiring a determination of whether the use of a person's name, likeness or persona is for commercial purposes. Frankfurt Kurnit's Intellectual Property Group tracks these laws and has litigated and advised on many of the leading right of publicity cases.
If you have a question about the Arizona or Massachusetts developments, or any other intellectual property matter, please contact Edward Rosenthal at (212) 826 5524 or email@example.com, or any other member of the Frankfurt Kurnit Intellectual Property Group.
Other Advertising Law Alerts
FTC Research Indicates Disclosures Help Consumers Recognize Ads
The FTC has long stated that consumers should be able to recognize an ad as an ad. And if disclosures are necessary to ensure that consumers will recognize that an ad is an ad, then those disclosures must be made in a way that ensures that consumers can understand them.
January 5 2018
New Low-Budget Waiver is Now Available for Digital Commercial Productions
Advertisers and agencies that are signatories to the SAG-AFTRA Commercials Contract can now take advantage of a new waiver issued by SAG-AFTRA and the Joint Policy Committee on Broadcast Talent Union Relations when producing low-budget digital commercials.
November 10 2017
FTC Updates Endorsement Guide FAQs and Settles First-Ever Action Against Individual “Influencers”
Recent developments demonstrate the FTC's continued interest in social media endorsements.
September 11 2017