The Boston Globe had an intriguing article in the Ideas section today about a bill pending in the Massachusetts legislature enlarging our current right to publicity: "Life, the aftermarket: New laws to protect celebrities push the bounds of what part of a human life can be considered property." (I gave the title and subtitle from the print Globe. Online as you will see, the title is "Who owns you after you die? A Massachusetts bill opens a window onto a shifting corner of the law.) According to the article by Leon Neyfakh, comedian Bill Cosby, a Massachusetts resident, became concerned about the possibility that his likeness might be used after his death to promote products or ideas he would never approve of. He asked his state legislator to sponsor a bill that would allow celebrities and regular residents alike to protect their images, names, speech patterns and various "signature affectations" even after death. This is a form of Right to Publicity Law (the article does not say so), and so far 13 states have extended the right to control an individual's publicity to post-death, according to Neyfakh. His article focuses on the philosophical issues raised between the individual's interest in controlling use of his or her persona balanced against First Amendment free speech and creative rights of others.
There are some interesting, brief quotes from the Boston College law professor who studies death law, Ray Madoff, author of Immortality and the Law: The rising power of the American dead. There are a few, less investigated issues raised briefly in the article that I wish had gotten more discussion, but perhaps that is asking a bit much of a newspaper article. These are questions that raise the specter of owning the right to human beings, even a "persona," echoes most uncomfortably the law of slavery. The question, what are we giving up by allowing major figures to become monetized assets? The question, isn't there some public right to cultural heritage?
In Massachusetts, the current law on right of publicity is codified at MGLA Chapter 214, section 3A. Citizens Media Law Project has a very nice guide about it. The law in Massachusetts currently does not extend to posthumous control of publicity. There is a handy survey of state laws on Right of Publicity compiled by Prof. Jonathan Faber, an (adjunct?) professor* at Indiana University, Indianapolis and Bloomington. The statutes I checked on very nicely reproduce the text and citation, rather than referring the reader to various states' websites. However, be alert that the statutes and blog may not be more current than say, 2008, when Faber lists some amendments pending for the laws in California and Illinois. The link to the survey of statutes will also link to his very interesting blog that includes commentary, case notes, and some marketing stuff.
There are some interesting notes on efforts to pass a federal Right to Publicity law, at International Trademark Association, an article posted online from the Communications Lawyer, vol. 28, no. 2, Aug., 2011, "Why a Federal Right to Publicity Statute is Necessary," by Kevin L. Vick and Jean-Paul Jassy.
Just by happenstance, the Globe also carried a brief opinion piece in the same issue, "Fan Fiction has a Place in Literature," by Cathy Young. She discusses the right and independence of fan fiction authors to riff on beloved characters in previous works. It sort of ties into the Right to Publicity. In a way an author's rights over his or her characters are a bit like celebrities' or even their own interests in their protecting their personal image from exploitation by others. And yet, as the Young points out, Shakespeare used characters from earlier works of all sorts, like The Moorish Captain, an Italian novella, which became the kernel for Othello, according to this editorial. Most of the great plays by ancient Greek or Roman playwrights were based on characters fully lifted from their myths and legends. As with the earlier article, Young raises the question of what creative chains we apply to the future by locking up access to potential mother lodes of inspiration.
* Faber may also (or perhaps, more clearly?) be an associate in the law firm McNeely, Stephenson, Thopy and Harrold -- he is not listed as a faculty member at IU Indianapolis, and may be an adjunct at both IU Bloomington and at IU Indianapolis.
The picture of a child peering through chains is from a blog, "Circles All the Way Down".