Leslie Chong is a JD candidate at Osgoode Hall Law School.

Nearly 50 years since the iconic platinum blond actress’ death, her name still epitomizes Hollywood glamour and beauty around the world. The timelessness of her name and image has led Jamie Salter, a Toronto-based businessman who runs Authentic Brands Group in New York City, to purchase the rights to Marilyn Monroe’s name, image and likeness. This recent acquisition comes on the heels the Group’s successful acquisition of reggae singer Bob Marley’s name and image several years ago, and will allow the company to build a brand around the iconic 1950s actress by licensing her image to a variety of products. The company hopes to “introduce a line of branded lingerie, handbags, jewellery and fragrances, and possibly a reality-TV show”.

The purchase of deceased celebrities’ likenesses for the use in endorsements is not a new phenomenon – stars like Johnny Cash, John Lennon and Andy Warhol are among the many whose estates have sold their rights to private equity firms. Elvis’ estate, for example, has licensed the use of his name for a “Sirius XM Radio, and worked with Cirque du Soleil”. It is clear that with a certain echelon of celebrity, their name and likeness is worth the same (if not more) dead or alive. It is estimated that Monroe’s likeness generated somewhere between $4 million to $5 million last year alone (it was noted that Michael Jackson’s earnings where upwards of $275 million last year alone), and that the deal to acquire the rights to her likeness was worth in the $20 million to $30 million range. But this leaves us all to wonder – how far is too far and should these celebrities’ estates be entitled to profit beyond the grave?

As it stands, copyright law in Canada (which subsists in a work for the author’s life, plus another fifty years after their death) is the only form of intellectual property that explicitly allows an author’s estate to benefit from the income generated from the works of a deceased author through a reversionary right. In fact, reversionary rights have gone so far as to ensure that the author’s estate and its beneficiaries are entitled to the full copyright in the author’s works 25 years after their death. This is to be contrasted with the rights conferred through patent law and industrial design (lasting for 20 and 10 years respectively) which do not revert back to the individual’s estate after death. As a result, unless contractual rights come into play, the inventor or creator does not have a monopoly over their intellectual efforts that is triggered on death – in fact, chances are that most of these inventors and creators will lose the exclusive monopoly over their inventions even before they die! Furthermore, it has been held in Canada that personality rights (more commonly referred to as the tort for the ‘misappropriation of personality’) do survive the death of the rights-holder, but these rights may be extinguished after some time (click here for discussion on personality rights in Canada).

Given that publicity rights were borne out of a need for a right to privacy rather than a commercial right to endorse products for profit, courts have grappled with whether a celebrity’s right to benefit from their likeness ought to die with them. On the one hand, the right to profit from licensing their name or likeness to a product should not be able to happen from the grave – a dead celebrity should not be able to endorse products, nor are they in any need of privacy. But does this mean that their name and likeness ought to fall directly into the public domain, for use and abuse as the public sees fit? Surely a celebrity’s estate should be able to prevent the dilution of the celebrity’s image and the unwanted association with certain products that are endorsed without consent. As the discussion continues as to whether these personality rights should subsist beyond the grave, we can look forward to getting reacquainted with some of the celebrities from the past.

Posted in Personality Rights