The Lively Jurisprudence of Dead Celebrities: Albert Einstein, New Jersey, and the Post-Mortem Right of Publicity

Will your image live longer than you do?  Artists, celebrities, and other creatives often invest substantial time and effort cultivating a personal brand image, and most likely anticipate its longevity.  The law recognizes a person’s right to profit from this investment by preventing third parties from “free riding” on a famous individual’s name or likeness.  A majority of states recognize this “right of publicity,” but vary as to whether this right should outlast its initial rightsholder and for how long.  In some, like New York, the right is extinguished with the death of the individual.  But in others, including California, the right of publicity constitutes personal property that can be passed on to ones’ heirs.

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“Here’s Looking at You, Kid”: That’s Not London Fog in the Moroccan Mist

Burberry has made extensive social media efforts this year to tell the public how its iconic look and status developed over time. Companies, like Burberry, with a visual history to promote, are especially attracted to Facebook’s Timeline. 

Timeline lets users post stories and pictures in chronological order. Visitors scroll down on a Facebook page and go back in time to the initial creation of a product. 

The company can create a nostalgic connection between the visitor and the brand. The Facebook Timeline for this “156 year-old global brand with a distinctly British attitude” includes photos of Burberry’s first store opening in 1856, images of pilots wearing Burberry aviator suits, and pictures of its classic trench coat through the years. 

Then Burberry posted a photo of Humphrey Bogart (Rick) wearing an actual Burberry trench coat in that sublime final scene of the film Casablanca, where Rick stands on the foggy runway, one of “three little people” whose problems “don't amount to a hill of beans in this crazy world…” The Burberry caption underneath the photo reads: “Humphrey Bogart wearing a trench coat in the final scene of Casablanca (1942).”

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Recording Artist Pitbull’s First Amendment Defense

Artists, authors and advertisers often ask our law office if they can use references to celebrities and other public personalities in their works and performances. Isn’t it fair use if I’m not charging for my own work that uses the celebrity’s name? Isn’t it parody if the name or image is imbedded in my original funny skit? Isn’t it free speech if the object of critique is of public interest? 

If an impersonation of Sarah Palin is ok, can’t I show the dark unknown about the Queen of England? Or write a song about George Zimmerman's parents? Personal publicity rights, which are largely the creations of state law (note that California has one of the more protective publicity statutes), combined with privacy laws established in constitutional jurisprudence and statutory recognitions, come up against the ever-shifting domain of First Amendment rulings and exclusions. The legal consequences can be surprising.

Read more about Pitbulls defense here on our company site...