During their lifetime a person can achieve frame from rare ability, dumb luck or a combination of the two. Only a fraction of those individuals who become famous during their lifetime have mass appeal after their death. These actors, athletes and celebrities have achieved the rarest kind of fame - everlasting fame. There is a value to that fame.
According to Forbes magazine, five dead celebrities earned big bucks in 2012. In first place was Elizabeth Taylor, who died in 2011, but earned $210 million last year. Next was Michael Jackson, who died in 2009, but earned $145 million in 2012. Coming in third, Elvis Presley who earned $55 million last year even though he died in 1977. Fourth place belongs to Charles Schulz (the creator of Charlie Brown), who died 2000 but earned $37 million in 2012. Fifth place on the list belongs to Bob Marley, who died in 1971 but still managed to earn $17 million in 2012.
Does the right of publicity last forever? Unfortunately for the heirs of George Washington, Ben Franklin and Abraham Lincoln, the answer is “no” there are time limits. How long will our five top earning dead celebrities (or any dead celebrity) have the right to control earnings from their names, images and likenesses? To the surprise of many, it depends entirely upon your domicile at the time of death.
In Indiana, for example, the right of publicity lasts for 100 years after a celebrity’s death. Parenthetically, Indiana was the home of James Dean and the state has provided a century’s worth of protection for its favorite son. In Florida the right of publicity lasts for 40 years after a person’s death. Florida, however, doesn’t have state income tax so celebrities keep more of their money while they were alive. In California, a state with hefty taxes, the right of publicity lasts for 70 years after a person’s death.
New York is different. In New York, a person’s right of publicity ends when they die. Last fall, the Ninth Circuit Court of Appeals reaffirmed this rule when it held that Marilyn Monroe’s estate could not obtain money for the right of publicity because for decades the estate had insisted that Marilyn was a New Yorker.
For the gorilla marketer on a budget who wants the power of a celebrity image in his next campaign – find a dead celebrity who was domiciled in NY at the time of their death. On the other hand, if you are that rare celebrity who will have everlasting fame and you want to provide for your heirs, move to Indiana. Maybe you can’t take it with you but that doesn’t mean you can’t continue earning money.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.