Who Owns You When You Die? What Can Be Learned From Prince, Michael Jackson and Robin Williams’ Estates

By Brandon Vogel

Microphone at concert

In life, Prince, who died without a will, pulled his videos from YouTube and once threatened to sue the website over copyright concerns.

In death, his video catalog is now available to stream on his official YouTube Channel, which the estate also used to stream a 1985 concert from the Purple Rain Tour to raise money for coronavirus relief. Google, the owner of YouTube, even matched the donations.

The Prince Estate is not the first estate to do a complete 180 in life and death.

Like James Dean, Michael Jackson’s estate grew exponentially in worth after his death due to increased album sales, the box office hit This is It, and Cirque du Soleil tribute shows. Jackson’s estate executors claimed that his estate was worth $2,105 at the time of death due to child molestation accusations and his tarnished image, while the IRS insisted its value was over $400 million. The result was a dispute between the estate and IRS, who claimed that Jackson’s estate owed them $500 million in taxes and $200 million in penalties.

Robin Williams reportedly wanted to avoid what happened to Michael Jackson and left the rights to his name and likeness to a charitable organization before his death. Williams also ensured that no one can use his likeness for 25 years after his death. Experts have said the Robin Williams Trust could be the model for other celebrities who want to protect their image.

Famous cases such as these were up for discussion on the CLE Webinar, “Stealing Your Image And The Grateful Dead: Amendments To New York’s Right Of Publicity Law.”

Changes to the law coming

On November 30th, 2020, Governor Cuomo signed into law a new postmortem provision that protects individuals from unwanted and unauthorized post-mortem commercial exploitation and digital replicas. It applies to persons who have commercial value at the time of their death, or resulting from their death. This postmortem right to the state’s law will last 40 years after death. The amendments to New York’s Right of Publicity law will take effect on May 29, 2021.

Professor Jennifer Rothman, University of Pennsylvania Carey Law School, said that New York has actually had the longest standing right of publicity law for the living in the country. It was passed in 1903, with what was called the ”right of privacy,” and remains in effect today.

“When I am talking about the right of publicity, I’m taking about the law that prevents the unauthorized use of people’s identities. The “Right of Publicity” refers to every individual’s inherent right to control the commercial use of his or her personal characteristics,” said Rothman. “This legislation balances longstanding First Amendment protections with the need to further protect the unauthorized exploitation of performers for commercial purposes in the digital age, after they have died.”

She said that the longstanding right of privacy and right of publicity in New York has long included both economic rights and personality rights, the right of an individual to control the commercial use of his or her name, image and likeness.

Post mortem rights “are of quite a recent vintage,” said Rothman. The first two states to adopt post-mortem rights, California and Tennessee, were in 1984. These laws were adopted after the events of 1977 with the landmark Supreme Court case of Zacchini v. Scripps-Howard Broadcasting Co. The court held that Scripps-Howard’s constitutionally privileged free speech did not extend to broadcasting Zacchini’s entire performance of his “Human Cannonball” act without his permission.

Today, Rothman said, states remain divided on the question of postmortem rights: whether they should exist at all and, if they do, what they should look like.

New York has hardly fallen behind the times by not offering one, explained Rothman. Border states Connecticut, New Jersey and Massachusetts do not provide or recognize such a right. Pennsylvania does, but it is only for up to 30 years after death and is limited to those who have commercialized their identities.

She said that New York has been trying to pass such a law for years. “The good news is that this law has greatly improved from prior iterations. Prior iterations at various turns, had eviscerated or upended privacy or publicity laws from 100 years ago and did not have adequate speech protections.”

The new law passes a new section to the Civil Rights Law of New York Section 50-F. It Includes a traditional post-mortem right of publicity and a more novel provision related to digital replicas. It extends to deceased performers and deceased personalities.

Performers are limited to those who died domiciled in New York. It includes someone, at the time of death, regularly engaged in acting, singing, dancing, or playing a musical instrument. It excludes retired performers but does include street musicians.

“The heart of the postmortem is attached to a deceased personality,” said Rothman. Deceased personalities are individuals who died domiciled in New York but much broader in definition. It extends to anyone whose voice, signature or likeness has commercial value at the time of death or has commercial value because of the nature of the death.

The term lasts for 40 years after death, which is longer than Pennsylvania, but shorter than California.

The postmortem right is a transferable and descendible property right, said Rothman. Who it goes to after a person dies depends on several actors such as whether the deceased, prior to death, transferred the postmortem rights to someone else.

This postmortem right is violated when a deceased personality is used for merchandise or goods without consent. Remedies include actual damages, profits attributable, and punitive damages.

Digital replicas

Edward H. Rosenthal (Frankfurt Kurnit Klein & Selz) explained that the new laws regarding postmortem rights and against the use of digital replicas do not take effect until 180 days after the statue was enacted. A performer who dies before May 29 will not be protected under either aspects of the statute.

Digital replicas are a newly created, original, computer-generated electronic performance by an individual in a newly created, original, expressive sound recording or audiovisual work in which the individual did not perform. Examples would include 2Pac’s computer-generated performance at Coachella, 16 years after his passing.

Rosenthal said there was a concern that filmmakers might use dead performers and use digitization to put them in new performances and movies. “The New York statute is designed to protect that.”

The new law only applies to performances that are so realistic that a reasonable observer would believe that it is a performance by the individual being portrayed and not any other individual. It also does not cover the reproduction, computer generated or other digital remastering of an “expressive sound recording” or audiovisual work consisting of the individual’s original or recorded performance.

There can be no damages unless the use is likely to deceive the public into thinking that it was authorized by the owners of the postmortem right, said Rosenthal.

He noted that after a celebrity’s death there can often be a rush to make commercial uses of that person’s right. He acknowledged the many tributes within hours of Prince’s death that could very easily be deemed as a violation to the right of publicity law.

Other speakers included Daniel Szalkiewicz (Daniel Szalkiewicz & Associates) and David H. Faux (The Law Office of David H. Faux).

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