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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 erosenthal@fkks.com, or any other member of the Frankfurt Kurnit Intellectual Property Group.
Other Advertising Law Alerts
What the Advertising Industry Can Learn from Kim Kardashian’s Settlement with the SEC
On October 3, 2022, the Securities and Exchange Commission (SEC) announced that it entered into a $1.26 million settlement with Kim Kardashian over her social media promotion of the EMAX token without disclosing payment she received from token issuer, EthereumMax. The matter provides important lessons for advertisers. Read more.
October 10 2022
Get Ready for California’s New “Automatic Renewal” Rules
California recently amended its Automatic Purchase Renewals law. The amended statute - effective July 1st -- require marketers to provide consumers of automatic renewal or continuous service offers with more information and easier ways to terminate. Read more.
June 22 2018
“Made in the U.S.A.” Claims Continue to be Scrutinized
In 2016, California amended Section 17533.7 of the California Business and Professions Code ("Section 17533"), liberalizing the standard for selling products labeled "Made in U.S.A" to California consumers. Read more.
June 4 2018
