The idea for the law came, more or less, from Bill Cosby. The comedian, who lives in Shelburne Falls, was worried about what would happen after he died—that opportunists would one day use his name and image to promote stuff he’d never want to be associated with. Cosby’s lawyer called his state senator, Stanley Rosenberg, and asked him to sponsor a bill that would let her client—and everyone else who lives in Massachusetts—protect their faces, names, speech patterns, and various signature affectations by passing the rights to them down to their heirs.
Cosby’s lawyer got results. Late last month, Rosenberg’s bill passed the Senate in Massachusetts and was sent to the House Committee on Ways and Means. It could be passed before the end of the year.
If the bill becomes law, people in Massachusetts—most notably those who, like Bill Cosby, have built up bankable personas over the course of their lives—will be able to treat their identities as pieces of property that continue to exist in the world long after they do. For 70 years after your death, according to the proposed bill, your identity will legally live on, and your heirs will be able to own it, or sell it, or sue anyone who uses it without asking.
A law that protects you from posthumous exploitation might seem like an intuitive move; after all, nobody wants to imagine their face, or their mother’s face, being used in a way they disapprove of. But the idea is also a relatively new one, and if the bill passes it would place Massachusetts on one side of a little-known shift in how the law treats personal identity in America. At the heart of the matter is the existential-sounding question of whether our public personas—the versions of “us” we construct during our lives—are an ownable thing that can be bought and sold, or whether, after we’ve left the stage, they vanish into the air and essentially belong to history.
There was a time when celebrities couldn’t do much to stop people from making unauthorized money off their fame even during their lives. But today, it’s understood that if someone wants to use, say, a photo of Anna Wintour’s signature bob to promote an energy drink, they need to get her permission first. To date, 13 states have passed laws that take this notion a step further, and explicitly make the rights to a person’s identity a piece of property transferable after death, not unlike a car, a house, or a gold watch. They are even transferable in advance, while the person is alive. Already, a peculiar network of companies has arisen to manage dead people’s identities—most notably CMG Worldwide, which handles a hall of fame list of clients that includes the estates of James Dean, John Belushi, and Billie Holiday—and to lobby states to pass post-mortem publicity laws.
In one sense, turning a persona into an ownable commodity is in keeping with a trend in American law toward the expansion of intellectual property rights. But there is something unsettling about it, too.
If these laws seem eminently reasonable to the people affected, however, this new form of property has also triggered concerns that affording too many protections to the dead will take away too many rights from the living. Critics imagine a world in which costume shops can’t dress kids up as Humphrey Bogart for Halloween, pop stars can’t borrow dance moves from Michael Jackson, and college political clubs can’t sell T-shirts emblazoned with John F. Kennedy’s face without paying a licensing fee for the privilege.
“We are giving something up when we say identity is a privatized interest—that ‘Mark Twain’ or ‘Jack Kerouac’ are private assets of CMG Worldwide. We’re giving up access to our cultural heritage,” said Ray Madoff, a professor at Boston College Law School and the author of “Immortality and the Law: The Rising Power of the American Dead.”
Other pushback has come from movie studios, book publishers, and newspapers, concerned that overly strict protections will limit free speech and artistic creation. Then there are the deeper questions: Can a person’s identity really be owned? And if so, what does it mean to be able to sell yours?
Since early in the 20th century, privacy law has given normal citizens the expectation that they can stop others from placing them in the public eye or using their name and likeness without permission. But the extent to which celebrities should be allowed to police their image has evolved slowly. In the 1920s, Charlie Chaplin successfully sued to stop an actor who performed as “Charles Aplin” from copying his style; in 1953, a judge ruled on a case involving baseball card companies that granted ballplayers a “right of publicity” allowing them to intervene when a third party tried to profit off their image without first seeking approval. For decades, however, it was widely understood that this right expired at death, and once a celebrity died, those of us who were still around and breathing could use his or her image however we pleased.
The first important challenge to this state of affairs came from the family of “Dracula” star Bela Lugosi, whose heirs sued Universal Pictures in 1966 for control of his image. Though the California Supreme Court ruled against the Lugosis in 1979, the case “crystallized the dilemma,” according to Jonathan Faber, who heads the licensing company Luminary Group.
To protect its resident celebrities, California’s Legislature passed a pioneering law in 1985, the Celebrities Rights Act, which held that a person’s image rights persist for 70 years after death—effectively turning identity into a piece of intellectual property that can exist independently of them. It served as a template for similar laws across the country, including one in Tennessee that came to be known as the “Elvis Presley Law,” which extended the right not just for 70 years, but forever.
The laws are more than a form of protection: They’ve turned identity into a new kind of asset. Today, if someone wants to create, say, a 3D hologram of Tupac and have it “perform” a concert, they need to first get permission from his mother, who controls the rights to her late son’s image. Or if a toy company wants to market a science kit with Albert Einstein’s face on the box, they have to clear it with Hebrew University of Jerusalem, which manages the physicist’s image with vigilance. Some families have proved very eager to monetize their relatives. “We get countless calls about people who are famous and passed away to ask us if we can magically turn them into a brand and so forth—and that’s very seldom possible,” says Mark Roesler, the intellectual property lawyer who has become perhaps the most prominent avatar of the dead celebrities industry. Roesler, the head of CMG Worldwide, was hired by the James Dean estate in the 1980s to handle licensing, and his company has since added hundreds of deceased stars to its roster.
Occasionally, CMG has even acquired the rights to deceased celebrities’ images outright, including that of model Bettie Page—Playboy’s Miss January in 1955—who died in 2008. (A Bettie Page-branded store is scheduled to open on Newbury Street in Boston this fall.) “She didn’t have any children, and she wanted to be remembered as the pinup queen that she was, and the legend that she was, and she asked us if she left her intellectual property rights to us, if we’d continue to protect them,” Roesler said.
In one sense, turning a persona into an ownable commodity is in keeping with a trend in American law toward the expansion of intellectual property rights. But there is something unsettling about it, too. It was one of the great moral leaps in American history when we drew a permanent line around human beings and decreed a person could no longer be considered “property.” Today, technically, we don’t even physically own ourselves, at least after we die: Thanks in part to the principle of Corpus nullius in bonis, which has its roots in English common law and translates to “The body belongs to no one,” there’s no legal guarantee that our wishes to be buried in a particular way, or to have our corpses donated to science, will be honored.
Now, however, as post-mortem publicity laws are enacted around the country, there’s increasingly an aspect of personhood that can be considered property, and can even be owned by others while the person is still alive. In perhaps the most extreme example of where the laws have led, Muhammad Ali sold 80 percent of his licensing rights and trademarks in 2006 to the company CKX—which also owns “American Idol” and which was recently renamed Core Media Group—for $50 million. Anyone who wants to use his signature proclamation—“I am the greatest!”—in a commercial, or put his face or silhouette on a T-shirt, has to go through the company. (As for whether this means the champ himself now has to ask permission to, say, market a line of his own bobble-heads, a representative at Core Media Group declined to comment.)
Ray Madoff, the BC professor, got a firsthand look into just how tightly managed the identity industry is when she called CKX, which paid $100 million for an 85 percent ownership stake in the Elvis Presley estate in 2008, and told them—as an experiment—that she wanted to hold an Elvis lookalike contest on the BC campus. She said they told her what they tell every Elvis impersonator: “They said yes—if you pay us.”
As supporters see it, guaranteeing our celebrities a post-mortem right of publicity is a moral imperative. “I don’t think it’s fair that other people should be able to take the personhood of another for commercial purposes without their permission,” said Senator Rosenberg. “[It shouldn’t be the case that] the day after they die, all of a sudden they’re fair game and somebody can go and make money off their face, their voice, the things they created in life.”
The main argument against this line of reasoning has traditionally been that “dead celebrity” laws threaten the first amendment rights of filmmakers, journalists, artists, and anyone else who might ever want to incorporate a famous person into their work. In response to concerns voiced by media organizations like the Motion Picture Association of America, most such laws—including the Massachusetts bill—are written with specific exemptions for creative endeavors, including books, movies, music, and commentary.
These protections have largely satisfied groups like the MPAA, which supports the Massachusetts bill and considers it fair. But some critics see the problem in more philosophical terms, arguing that no matter how many exemptions are made, such laws still privatize something that ought to be considered part of the public’s cultural heritage. One illustration of this involved Martin Luther King, whose family was paid an $800,000 licensing fee when a foundation building a memorial in King’s honor in Washington, D.C., wanted to use the civil rights leader’s face on fund-raising materials.
“My concern is over the continued development of popular culture,” said David Wall, a professor at Durham University in England who studies the sociology of law, in an e-mail. Popular culture, he points out, is essentially a huge blender of borrowed influences. “The big [question] is whether Elvis could become Elvis in this modern world. His hair colour and flick were copied off his child idol, Captain America; his clothes style and dance were drawn from contemporary black fashion, but especially Jackie Wilson....No celebrity image comes out of the blue.”
Of course, if you are even more philosophically inclined—and you don’t hope to make your living knocking off James Brown’s dance moves or Bill Cosby’s iconic sweaters—it’s also possible to see something almost reassuring in what these laws are trying to do. By declaring that our identities officially survive us for decades, the Massachusetts Legislature would essentially be affirming the existence of a sort of afterlife on earth. In this world, after we leave it, our essence will endure—even if it will be someone else who owns it.