The Right of Publicity On Steroids
Good news for celebrities and their heirs, Indiana might grant yet another way for you to make money. The right of publicity is a right granted by states and therefore will change from state to state. The state of Indiana has a very generous right of publicity law allowing celebrities or their estates to protect: name, voice, signature, photograph, likeness, distinctive appearance, gestures, or mannerisms, regardless of where they were born or lived. This law in Indiana not only gives these comprehensive rights but also gives these rights to celebrities for 100 years after death. On the other hand, the state of California has a right of publicity law that grants protection to: name, voice, signature, photograph, or likeness. This law in California is very generous, but only grants these rights for 70 years after death.
Some celebrity estates have attempted to apply Indiana’s right of publicity law even though the celebrity died before the statute was enacted. Multiple courts have found it difficult to extend the rights granted by the statute to those celebrities who have passed before its enactment. The courts have found it difficult to extend the rights because they find it impossible for the celebrities to grant property rights that they lacked any publicity right to devise in a will. The U.S. District Court of New York held in Shaw Family Archives v. CMG Worldwide / Marilyn Monroe LLC that:
“MMLLC argues that its ownership interest in Ms. Monroe’s postmortem right of publicity — assuming arguendo that such a right exists — stems from Ms. Monroe’s valid devise of this right to Lee Strasberg through the residuary clause in her will. The court concludes — regardless of Ms. Monroe’s domicile at the time of her death, and regardless of any rights purportedly conferred after her death by the Indiana Right of Publicity Act or by Cal. Civil Code § 3344.1 — Ms. Monroe could not devise by will a property right she did not own at the time of her death in 1962.”
Relying on Shaw a U.S. District court in Indiana held in Dillinger LLC v. Electronic Arts Inc. that, “statutory provisions . . . can be read equally to protect personalities who live and die after the statute’s 1994 enactment, as they can be read to protect those who have ever lived. At present, given the existence of a reasonable alternative reading of the statute, the Court must presume that the Indiana Supreme Court would not endorse such a result but would instead adopt the narrower reading.”
In response to these decisions, Indiana is now considering amending the law to extend rights, “whether the personality died before, on, or after July 1, 1994.” The Indiana House of Representative’s has already passed the bill. It will now go to the Senate, and then to the Governor for his signature. If adopted, the law is clear that state of Indiana intends for the right of publicity to apply to celebrities who passed away before the law was in effect. This would eliminate any judiciary confusion down the line. To put this amendment into context if passed this year, Harriet Tubman’s right of publicity would still be protected.