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.
Personally, I find the whole area of publicity/personality rights in deceased celebrities a bit distasteful.
If we are really interested in protecting the dignity and privacy of the deceased then I think we should be looking to more of a moral rights regime rather than a substantive right.
One possible analogous situation is the right that exists in a person’s remains. To my knowledge, the common law does not generally recognize a property right in a dead body. The courts have, however, recognized a trust-like possessory right that allows individuals (the family, funeral directors, etc.) to assert rights over the body for the purposes of ensuring proper disposal. The idea is that someone needs to be able to assert some sort of a right to prevent indignities to the remains.
Perhaps a similar right should be created for the likeness of the deceased. The estate would have the right to seek an injunction to prevent uses of the person’s likeness that would be likely to damage their reputation, but would not have a monopoly on exploiting the likeness for commercial gain.
From my understanding of this case (and of the others that involve the licensing of a deceased celebrity’s likeness) it is the celebrity’s estate that actually licenses the use their likeness and they often stand to make a profit from this exploitation. Given that the estate DOES have the right to protect against unlicensed uses of the person’s likeness, they also have the concomitant right to exploit it. Unless the law somehow distinguishes between the current ‘sword and shield’ rights given to a celebrity’s estate, and limits the ‘sword’ powers vested in them, they will likely remain.
On another note, there are current laws that protect a celebrity’s personality rights after death. Laws have been enacted in California and a number of other states (for example, the California Civil Code s. 3344 is commonly referred to as the “Celebrities Rights Act” and effectively extends the personality rights of a celebrity for 70 years after his or her death). I suppose that Canada has been slow to enact a similar provision since there is no real need for this protection.
The concluding comment that “Canada has been slow to enact a similar provision” to US state statutes protecting celebrities’ post-mortem rights needs qualification. Canada may be the unacknowledged leader, in its 1953 enactment of s. 9(1) of the federal Trade-marks Act, of the provision that prevents the adoption “in connection with a business, as a trade-mark or otherwise” of “any mark consisting of, or so nearly resembling as to be likely to be mistaken for… (l) the portrait or signature of any individual who is living or has died within the preceding thirty years”. The grant of injunctions relating to its companion prohibition in s. 9(1)(k) on living individuals (Baron Philippe de Rothschild SA v La Casa de Habana Inc. (1987), 19 CPR(3d) 114 (Ont HC) suggests that similar relief — and damages? — might be available to the deceased’s estate as “such other person, … authority or organization as may be considered to have been intended to be protected by this section” (s. 9(2)(a)). Intriguing possibility, assuming constitutionality, don’t you think?
[…] Some (still) like it hot: Marilyn Monroe’s publicity rights sold for millions (IP Osgoode) […]
Comments are closed.