When it comes to post-mortem publicity rights, this decision is BIG:
The Southern District of New York has just issued a bombshell decision in this area. In Shaw Family Archives v. Marilyn Monroe LLC, it held that Marilyn Monroe’s heirs cannot claim post-mortem publicity rights because she died before the enactment of the statute that creates them in California (and, for reasons that are not important here, Indiana). So, according to this Court, her image, likeness and persona are all in the public domain. Put it on a t-shirt. Or a bottle of wine. Use it to sell widgets. No permission necessary. (But please remember, copyrights to the photograph you might want to use are a whole spearate issue.)
Is this a big deal? You bet. Licensing dead celebrities is a multi-million dollar business. But California – the center of the celebrity universe – only passed the statute creating post-mortem publcity rights in 1984. Lots of the hottest dead celebrities (licensing-wise) died long before that, and millions of licensing revenue stands to disappear under this decision.
Intellectual property lawyers in Hollywood will now have plenty to worry about, and therefore plenty of job security, for years to come.
This gets to the heart of the new “ownership society” in which we’ve found ourselves, where people’s images, ideas, even naturally-occurring genes are claimed. It’s like watching 2nd grade boys claiming territory in the sandbox. “First dibs!”
(Are there sandboxes on playgrounds any more? Let’s ask the lawyers.)
If I come across as a tad cynical about this, that’s because I’m getting the sense that the claims being made by media corporations and other interested parties are not helping to encourage innovation, but rather are working to stifle it. –Not that the prospect of seeing more Hollywood golden era stars dancing with vacuums has anything to do with innovation one way or the other.
This is going to be an interesting story to follow. And you can be sure the news media will cover it. After all, such things are their bread and butter.