Every so often, I’m asked by clients and prospective clients alike whether or not it’s permissible for them to use the name, image, or likeness (“NIL”) of a celebrity or famous person who now happens to be deceased. This question was asked of me the other day by clients who wanted to put the face of, oh, let’s just say, Che Guevara, on an article of clothing with some meme-worthy text. Delightful, right? I mean, what’s the big deal; he’s not going to complain, right?
The Right of Publicity
Unfortunately, while the famed Marxist revolutionary might not be around to complain, his estate or heirs likely are. There is a thing in the law known as a person’s right of publicity, which basically deals with one’s right to monetize or exploit their NIL and, yes, this right extends even to deceased individuals (or, more correctly, their estate). This right most typically comes up in the case of celebrities and famous individuals.
While not all of them do, several U.S. states have laws on the books protecting publicity rights of deceased individuals and reserving them to their estate and heirs (California’s being the most notable, for fairly obvious reasons). Therefore, you would have to figure out where the deceased person actually resided or was domiciled and look to see whether that state has such a law in place, as well as what it actually covers.
Isn’t There a First Amendment?
Even if the deceased celebrity was the resident of a state with a recognized right of publicity, all may not yet be lost. Many state’s right of publicity laws also have a carve-out under the First Amendment for expressive works that utilize the NIL of the deceased person in a “transformative” way. That is, the actual value of the thing being used or sold that includes the NIL comes from something separate or apart from the mere identity of the celebrity itself.
Unfortunately, while very cool looking, I had to break the news to the client that their proposed use was not likely to be found to be transformative, since the planned usage was pretty clearly using the NIL of the famous Argentinian as its primary selling point to buyers, as opposed to making any type of actual social commentary or engaging in critical discussion about the specific individual themselves as you might find in, say, a musical, or article, or biopic involving the person.
Lanham Act Concerns
Lastly, while there isn’t a specific right of publicity at the Federal level, there is nonetheless the possible risks of liability at the Federal level by way of The Lanham Act (41 U.S.C. § 1125); namely, claims for false advertising or advertising that could be considered misleading or deceptive. However, for various reasons that are outside of the scope of this article, a Lanham Act claim would be far less effective a route for an estate or heirs of the deceased person to come after you than, say, one of the state-level laws described above. However, in a situation where the deceased famous person or celebrity was a foreign national or domicile cannot be clearly established to fall under a particular state’s requirements, the filing of an action in Federal court might be worth exploring.
In conclusion, without having some type of permission from the deceased person’s estate or whatever agency or firm manages the publicity rights of the dead celebrity, basically taking a famous person or celebrity’s NIL for your own commercial use is probably just asking for (legal) trouble. As I tried to explain to the client, I would first find out who exactly manages the rights to the NIL properties of the deceased subject and see if you can’t work out some form of non-exclusive, limited license with the rights’ holder.
Ben Bhandhusavee is the Managing Attorney for BHANDLAW, PLLC, a startup, technology, and e-commerce law practice advising founders and management teams on company startup, corporate and technology transactions, e-commerce, as well as Internet privacy concerns. The firm serves corporate and individual clients throughout Arizona, the United States, and internationally. Our offices are conveniently located along the Camelback corridor in Phoenix’s financial district. For more information about our Name, Image & Likeness practice, feel free to reach out using the contact form on the right or call us at (602) 222-5542 to schedule a meeting. Connect with Ben on LinkedIn or Avvo.