Below is an excerpt of an interesting recent NYT piece by Ray D. Madoff, a professor at Boston College Law School and author of “Immortality and the Law: The Rising Power of the American Dead.”
The New Grave Robbers
CAN a wild wig and a bushy mustache be packaged and called an Albert Einstein costume? According to Hebrew University of Jerusalem and its American marketing agent, the answer is no — at least not without permission. The university says that when it inherited Einstein’s estate, the bequest included ownership of Einstein’s very identity, giving it exclusive legal control over who could use Einstein’s name and image, and at what cost.
Einstein is not the only example. While we might think of people like the Rev. Dr. Martin Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of our cultural heritage, available for all to use, the identities of each of them, and thousands more, are claimed as private property, usable only with permission and for a fee.
This phenomenon is fairly recent — and it’s getting out of control.
Sadly, Madoff naively thinks that the answer to the problem is a Federal 'solution', as if that will rein in rather than give free rein to abuses; copyright, patents and trademarks, anyone?
Yet, because these are issues of state law, the litigation has not brought clarity on a national level.
Congress should step in and enact a federal right of publicity. In doing so, it should establish clear First Amendment protections and set forth a relatively short term for the right of publicity to survive death (perhaps 10 years).