01 Mar I See Dead People, Celebrity Edition
Some say that celebrities never truly die. Although Elvis died more than 40 years ago, his music and legacy still live on. With the advancement of technology, deceased celebrities are coming back to life in ways they probably never imagined possible. Tupac Shakur appeared at Coachella in 2012 via hologram, and Peter Cushing “reprised” his role of Grand Moff Tarkin in 2016’s Rebel One through CGI technology.
These post-mortem appearances pose an interesting question to general celebrity publicity rights.
The “right of publicity” is an intellectual property right. It prevents an individual from having his or her name, likeness, nickname, voice, or other attribute misappropriated for commercial benefit. These rights are generally protected by state statute and case law.
California prohibits misappropriation of a person’s name, voice, signature, photograph (including moving pictures), and likeness for paid commercial advertisement or sponsorship purposes. However, there is an exception for news or sports broadcasts in which the individual may appear.
California, like some states, has a specific statute, Cal. Civ. Code 344.1, regarding posthumous rights. Under this statute, posthumous rights of publicity last for 70 years. The holder of this right must register with California’s Secretary of State in order to recover damages from unauthorized use of that person’s name, voice, signature, photograph, or likeness.
However, the statue specifically exempts usage in audiovisual or television programs, leaving the door open for filmmakers to use images of deceased actors in future works.
In movies in which an actor died mid-production, it has typically been the practice for the production company to supplement the actor’s remaining roles in order to have a completed project. This was the case after Phillip Seymour Hoffman passed before completing The Hunger Games: Mockingjay Part 2 and Paul Walker passed before finishing the seventh Fast and Furious film. There is no question of permission because both actors signed contracts allowing these films to use their images.
Questions to Consider Regarding Posthumous Publicity Rights
If you have even mild celebrity now, you should give some thought to your posthumous publicity rights. These questions should include:
- Do you want any part of your image or likeness to be used for any reason? Some people may balk at the idea of themselves being used after they pass, but others may want their image to be used for some, or many purposes. This could be a way to live on after death, or a way to continue to share their story with the world.
- Who do you want to be in charge of your publicity rights? Do you want your child(ren) to be the sole decider(s), or would you rather have this responsibility rest in the hands of a professional agent?
Laying out these wishes in a legal document, whether a last will or in a separate contract is a way to let the world know what your wishes are after you are no longer here to specify your choices.
This article is for informational purposes only and does not provide legal advice. If you are interested in speaking with a entertainment lawyer, contact Heerde Blum LLP by calling 310-620-7172 or 212-920-5858 or by filling out the online contact form.