Intellectual property refers to inventions and trademarks as well as to literary and artistic works such as novels, plays, films, music, photographs, works of art, and rights related to performing artists in their performances and recordings. Emerging law from California has expanded the concept to include the so-called “right of publicity,” allowing this right to pass automatically to a deceased public figure’s heirs and estates.
It’s generally understood that artists and musicians, for example, are entitled to copyright protection for the works they create. Other performers cannot perform or use music or artwork for their benefit without the copyright-holder’s permission. For example, Florida Governor Charlie Crist was sued by Talking Heads star David Byrne for the unauthorized use of his music in a campaign commercial. John McCain, the 2008 Republican nominee for president, was successfully sued by Jackson Browne for his campaign’s illegal use of one of his songs.
In a grayer area, paparazzi make a living by seeking out celebrities in order photograph them, often in compromising or private situations. The company that buys and uses these images must be cautious because the photograph may constitute an invasion of privacy. Intellectual property law does not usually protect most photos of famous people unless the photo has no bearing on the person’s public persona, such as a photo of sexual activity.
What is protected, however, is a celebrity’s public image. Using a star’s photo on fan magazine covers or in sports news is not an infringement because the use is considered informative. But if an entrepreneur uses the star’s likeness without permission to sell posters or T-shirts, for example, then the image is being used for commercial benefit, and that may be an infringement.
A deceased celebrity’s image is also protected, which can be lucrative for heirs and estates. The university that owns Albert Einstein’s publicity rights sued General Motors for allegedly using an unauthorized image of the famous physicist in a car advertisement. Although he died in 1955, Einstein’s estate reportedly grossed $10 million in 2009, partly from giving permission to use Einstein’s name on “Baby Einstein” products. The highest gross sales for a deceased celebrity may be Michael Jackson, whose estate reportedly took in over $90 million in just the first year after his death 2009.
The right of publicity was recognized as protected intellectual property in a 1984 California statute. California Civil Code Section 990, now Section 3344.1, says the right of publicity automatically transfers to a deceased celebrity’s rightful heirs. Plays, books, films, and radio shows using a deceased’s likeness, name or voice as part of a review or artistic endeavor are permitted, however.