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Preserving Personas: State’s Personalities (Old and New) Are Unprotected

What do Steven Jobs, Marilyn Monroe, and Albert Einstein have in common? Their valuable personas survive their natural lives. Apple has recently moved to prevent the manufacture of Steven Jobs dolls. Albert Einstein’s rights are held by the Hebrew University of Jerusalem and, according to the New York Times, have generated over $76 million over the last six years. However, the Marilyn Monroe estate found itself holding a property right which did not exist at the time that Monroe died in 1962. When attempting to prohibit the sales of T-shirts with her iconic billowing skirt scene from The Seven Year Itch, Monroe’s estate was blocked from enforcement.

The legal wrangling about Monroe’s estate began in California, but ultimately a federal district court in New York affirmed in 2008 that Monroe’s residence was in New York State, and thus her estate could not benefit from a California statute which provided a descendible right of publicity. Whether estates can control this very valuable asset depends on whether their state of domicile recognizes a descendible right. There are no federal rights of publicity, and Maryland is in the minority of states that do not recognize the right of publicity either by statute or common law.

Maryland has a long list of notable personalities and recognizable persons who could benefit from a right of publicity, such as David Hasselhoff, Duke Ellington, Cal Ripkin, Frank Robinson, Babe Ruth, and Oprah Winfrey. California law provides descendible rights for 70 years; Illinois law allows for 50 years; Virginia for 20 years; and Tennessee, where the Elvis Presley estate resides, recognizes the right for 10 years after death, but the right can continue in perpetuity if used continuously. Although the Baltimore Film Office is attempting to attract filming in Baltimore and presumably to also attract the personalities and artists associated with the filming, their efforts might be undermined as personalities may steer clear of a state which provides no publicity rights. Thus, celebrities may avoid Maryland in retirement.

House Bill 557, sponsored by Maryland Del. Samuel Rosenberg, was introduced in the 2012 General Assembly and provided a descendible publicity right in Maryland. Entitled “Deceased Personality – Property Rights”, it sought to provide assets that are “freely transferable or descendible by contract… to have existed at the time of death of a deceased personality.” The draft bill provided for testamentary as well as for non-testamentary rights for personalities that have value at the time of death, for 70 additional years. The bill also provided for retroactive rights, but did not provide a retroactive cause of action for any acts prior to the bill taking effect. Non-testamentary rights include a per stirpes inheritance for descendants. A hearing was held on February 15. The Judiciary Committee voted 15 unfavorable to four favorable and two excused; there was no Senate version of the bill. An issue that needs to be resolved in any intellectual property right is the identification and calculation of damages for unauthorized use. Questions of future liability for currently allowable uses should be addressed. Trustees or personal representative enforcement of rights are not addressed in the current version. Intellectual property issues, such as copyright and trademark law, must also be considered in any legislation.

Currently, federal copyright law provides for protection for the lifetime of an individual plus 70 years. Thus the alignment proposed in HB577, with the expiration dates for copyright and publicity, would create judicial efficiency and simplify calculation of damages, particularly for works which encompass several concurrent rights. Personas such as the “old ski nose” Bob Hope drawings or the Alfred Hitchcock profile drawings are examples of combined rights. While any statute that might be enacted to protect the personas of personalities has been described as “a litigation nightmare,” or alternatively, “a litigator’s dream,” depending on the position of the party, any intellectual property right will be complex and have many competing interests. Constitutional First Amendment protections and the hesitation of legislators to interfere with commerce are powerful considerations. However, the right of publicity is already embedded within most state statutes or common law under privacy rights, particularly for commercial uses.

The absence of publicity rights seriously undermines the value of other valuable assets of an estate, because unfettered use an image strips away from the ability of the estate to control the dissemination and use of the image. Although not likely to be enacted this year, it is hoped that Maryland will soon join the states with such laws.

This article was authored by DARS Associate Mary B. Tung. It originally appeared in the Maryland State Bar Association, Inc.’s on-line newsletter, Maryland Bar Bulletin, Vol. XXIX, March 2012.