The 2018 Super Bowl marked a monumental occasion for those of us residing in the great City of Brotherly Love-Philadelphia. As my eyes remained nervously affixed to the television for what seemed like an eternity, the estate and trust attorney in me could not help but notice two interesting happenings-Dr. Martin Luther King’s soulful oratory and use of his likeness for a Dodge truck commercial, and the appearance of the recently deceased music icon Prince, who was known to ferociously guard his image while he was alive, in snippets taken from his film Purple Rain during Justin Timberlake’s halftime show. The choice to include representations of these historical deceased figures generated quite a buzz, with many, including myself, wondering, “Would they have approved?” and “Did King, Prince, or their estates even have a say, and if so, did they actually give approval?”
Personality rights, also referred to as the right of publicity, protect against anyone who “appropriates the commercial value of a person's identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade.” 1 The level of protection provided varies from state to state, making it highly significant where someone dies. Uniform protection under federal law has been discussed, but there is currently no legal framework in place.
The three states that contain the country’s biggest entertainment industry hubs, New York, California, and Tennessee, possess both major differences and significant nuances in their right of publicity statutes. For instance, New York state and federal courts usually do not recognize a right to publicity after death. The statute’s focus is on the unconsented use of a living person’s “name, portrait or picture.” California, on the other hand, protects a person’s "name, voice, signature, photograph, or likeness, in any manner" in life and for 70 years after death (as in copyright law). California actually passed legislation that extended a person’s right of publicity from 50 to 70 years after death in response to a 2007 New York case involving Marilyn Monroe Shaw Family Archives Ltd v CMG Worldwide, Inc, 486 F Supp 2d 309 (SDNY 2007). The family of the deceased photographer Sam Shaw, whose pictures of Monroe include the iconic image of the actress standing over a subway grate in a billowing dress, asserted that they could sell the famous images commercially without first acquiring a license from the Marilyn Monroe estate. The court agreed, concluding that since New York did not recognize a post-mortem right of publicity and Monroe had died prior to the 1985 passage of the California Celebrity Rights Act, her name, image and voice were in the public domain in both California and New York. According to the court, Monroe’s heirs could not inherit a property right that she did not own at the time of her death. Further, the passage of later legislation could not affect the situation because a testator cannot gift property that she did not own at the time of her death. Following this line of argument, Monroe’s name, image and voice were in the public domain in any state that did not recognize a post-mortem right of publicity when she died in 1962.
Tennessee, like California, protects the publicity rights of the deceased. It covers fewer aspects of a person’s identity than in California—only name, photograph, or likeness—but it offers stronger protection for passing down publicity rights. Tennessee is not as strict as California, which only allows personality rights to be inherited by a surviving spouse, children, grandchildren or parents and not generally to any heir of those who die intestate. Personality rights are permitted to pass to executors, assigns, heirs, or devisees in Tennessee. Also, the Tennessee statute provides the opportunity for publicity rights to be passed on in perpetuity. Although rights are only guaranteed in Tennessee for ten years, protection can extend longer if those who inherit them make use of the name, photograph, or likeness at least every two years after the initial ten-year period. Tennessee’s protection of personality rights grew out of several litigation battles waged by the Elvis estate against the unauthorized use of the celebrity’s name and likeness. The state’s passage of the Personal Rights Protection Act of 1984 came in response to this slew of litigation and is actually being suggested as a model for Minnesota, which introduced, but later retracted, publicity rights legislation that was inspired by Prince’s death. The PRINCE Act (Personal Rights in Names Can Endure Act) was criticized as being overly broad in its protection.
Publicity rights in the United States can hit a ceiling when they conflict with the First Amendment’s right to free speech, and courts typically allow some uses of celebrity personas in art and journalism. Fox Broadcasting, which is currently embroiled in litigation with the entity that owns the publicity rights associated with Muhammad Ali over a 2017 Super Bowl promotional segment that used Ali’s image, is asserting a First Amendment defense in the $30 million lawsuit. Fox has filed an anti-SLAPP motion under a California statute, which is used to strike a complaint on the basis that it interferes with free speech. Fox’s attorney argues that if the holders of Muhammad Ali’s publicity rights get to dictate what can be said and shown about the legendary boxer, "the same result would follow for the dozens of other people whose 'identities' were shown in order to survey the historical events presented in the segment.... Put another way, the premise of Muhammad Ali Enterprise’s (MAE) lawsuit necessarily is that Fox may not say anything about anyone in this segment unless that person (or their heirs or assignees) individually approves of the message Fox wants to use to provide some historical context for the Super Bowl, and Fox must also pay each of them for that privilege. However, the law does not permit public figures to censor and control what broadcasters, or anyone else, may say about them in order to cover an important event like the Super Bowl." Fox claims that the spot had a noncommercial purpose and was protected as a "news, public affairs, or sports broadcast or account" under both Illinois (where the complaint was filed) and California law.
Muhammad Ali Enterprises, which brought the suit, claims Fox’s use of Ali’s image is a false endorsement under the Lanham Act and a violation of the Illinois Right of Publicity Act. Some federal protection is available for personalities under section 43(a) of the Lanham Act, allowing a civil action for “false affiliation, designation of origin, or endorsement in connection with goods or services used in interstate commerce.” The Act allows a person to recover damages when depicted without permission—falsely implying affiliation or endorsement of the goods or services promoted by virtue of their persona’s use. A celebrity’s image can be used as a powerful endorsement, not unlike the “quality assurance” a trademark provides—which brings us back to Prince and King. Would they have wanted to make appearances at this year’s Super Bowl? Would they or their estates have even had a say?
In a 1998 Guitar World magazine interview, Prince was asked if he would ever consider jamming with artists digitally resurrected from the past: “Certainly not,” he said. “That’s the most demonic thing imaginable. … If I was meant to jam with Duke Ellington, we would have lived in the same age. …Also, what they did with that Beatles song [‘Free as a Bird’], manipulating John Lennon’s voice to have him singing from across the grave. …that’ll never happen to me. To prevent that kind of thing from happening is another reason why I want artistic control.” A not-so-subtle hint of what King might have thought of having his words used to encourage people to buy pickup trucks can be found right in “The Drum Major Instinct” speech Dodge used as their ad’s soundtrack. In it, he criticizes capitalism and refers to advertisers as “those gentlemen of massive verbal persuasion.”
Both the King and Prince estates were allegedly consulted, and signed off on the Super Bowl appearances. The King Center though, a nonprofit founded by King’s wife in 1968 that has no ties to the estate, tweeted on the night of the game that neither it nor its CEO, King’s daughter, Bernice King, “is the entity that approves the use of #MLK’s words or imagery for use in merchandise, entertainment (movies, music, artwork, etc.) or advertisement, including tonight’s @Dodge #SuperBowl commercial.” Surprisingly, considering how tightly he controlled his image and music during his lifetime, Prince did not leave a will, which could have helped solidify how he wanted his image used (or not) in the future. The subject of the litigation over Prince’s estate has been addressed in prior blog posts of mine.