Publicity Law and "The New Grave Robbers"

Last week, Boston College of Law Professor Ray D. Madoff (no relation to Bernie, one would hope) wrote an op-ed piece in the New York Times on the subject of publicity and identity rights. Titled "The New Grave Robbers," the essay essentially decried the relatively new phenomenon of estates asserting control and copyright privileges over culturally prominent figures well after those figures' deaths. The example Professor Madoff uses right off the bat: does marketing a wig made of wild white hair and a bushy moustache qualify as an "Einstein costume," and would the unauthorized selling of such a costume mean the estate of Albert Einstein, who's been dead for more than a half-century, could sue in court?

According to Professor Madoff, who wrote a polemical book called Immortality and the Law: The Rising Power of the American Dead, a person's identity shouldn't be able to be sustained legally long after he or she has died. She asserts that this really is a form of "grave robbing," and one that deprives our culture as a whole of the ability to trade freely on the rich heritage many of these public figures have contributed. Basically, her argument is that after a certain point, no one -- not an estate or a company with ownership rights -- should be able to get paid for someone's use of the likeness of a famous or influential figure in American history (or anyone else, for that matter). Her point is valid, but her solution, as stated in her op-ed, is a somewhat draconian broadsword:

"Congress should step in and enact a federal right of publicity. In doing so, it should establish clear First Amendment protections and set forth a relatively short term for the right of publicity to survive death (perhaps 10 years). Most important, the law should provide a mechanism that allows people to opt out of marketing their identities after death. After all, sometimes the dead should be allowed to simply rest in peace."

During a debate in the wake of the professor's essay on the EASL (Entertainment and Sports Law) message board last week, I offered another option for ensuring that publicity rights, while maintained, are fair to everyone involved. My thought is that competition may provide an alternative to an across-the-board federal mandate:

"I don’t believe that each state having its own rules is necessarily a bad thing. And I definitely don’t agree with the author of the article's somewhat knee-jerk argument that a federal law by Congress is the best solution. I view the federal approach as using a blunt instrument in a rapidly evolving area of law. The values and factors of publicity rights vary so greatly in each case that it would be difficult to come up with a 'one-size-fits-all' statue. Additionally, with the speed at which technology is developing and the rise of new media and social networking, a strict federal law could have a chilling effect on innovation and new platforms. Why not permit the area to develop similar to state incorporation/LLC statues? Perhaps the National Conference of Commissioners on Uniform State Laws could draft a Uniform Publicity Rights Act as they did with the Uniform Limited Liability Company Act. Each state could then adopt the sections it deems best for that individual state's needs. That way states could compete for the litigation in their court systems and plaintiffs could shop for the best venues for their clients."

Since posting my take on this controversial topic, the response has been overwhelming -- and for the most part positive. The debate over this issue proves two things: first that publicity law, as a facet of what we practice as attorneys, is a growing field and one that may very well be here to stay, and second that while we as lawyers and servants of the law may have disagreements, contentious, healthy debate is always welcome.