- 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.
Hi folks -- this is Leon, the author of the Globe story. Steven emailed me to say you guys were discussing the issue and asked me to jump in. Here's an interesting wrinkle I didn't get to address in the piece: if you inherit the persona of someone very famous, you're responsible for paying taxes on the value of that asset, regardless of whether you make any money off of it. This means that in some cases, a family will be forced to commercialize the persona of the deceased even if they don't want to -- simply because they'd need the money in order to pay the taxes. Consequently, the right of publicity laws could lead to people's images being used to promote products even though their families would rather just leave them alone. Not sure how much I can add to this great discussion but I'm here, if you want to ask me something about my reporting! L
First off, thanks for dropping in. We appreciate it. Now my main question is the same as b_b's: Do you know how a deceased persona would be assessed? It's so very odd. It has no value unless you commercialize it, and there is no telling how successful any attempts might be. This just seems such a bad road to walk down because nothing can be quantified. Also, I don't understand where Elvis impersonators fall in this or in regard to the "Elvis Presley Law". Do they have to pay the owners of the estate? BTW, how are things in Boston? I lived a couple of years off Magazine in Central Square, and loved it. But that was more than a decade ago.
So, I put this question before a law professor at Pace named Bridget Crawford who specializes in tax law, and she told me that the IRS decides what the asset is worth. "There are a variety of accepted valuation techniques," she said. "The classic definition of fair market value is what a willing buyer and a willing seller would agree to." She added that if there was a dispute, it would go before a tax law judge. That said: "It’s never happened that there has been a valuation dispute about the right of publicity – it’s completely untested." I never figured out whether there's someone in particular at the IRS who would be responsible for making these calls, but I guess there would have to be, right? I should note: Crawford argues that it's possible for legislators to write postmortem publicity laws in a way that would avoid saddling heirs with huge tax bills. As I understand it, this would involve taking away the celebrity's right to decide who gets the asset, and instead requiring that it pass to a particular party, like, say his/her spouse and children This would make it a "survivorship right," and it would mean that the asset doesn't get taxed in the same way as a normal inheritance. Here's the quote from Crawford: "There’s a compromise there... By trying to protect the celebrity’s right, you create a huge tax problem but the only way to avoid the tax problem is to take away some of the very right you’ve just created." W/r/t Elvis impersonators, my understanding is if you're making money off it, you have to get their permission and pay them for the privilege. Boston's great! I live in Central Square as well.
Thanks for that. That is odd. Someone at the IRS determining what a dead person's persona is worth for tax purposes... I'm pretty sure the world would be ok without owning personas. It was for most of human history. Nice. Is the Middle East still there? I loved that place.Boston's great! I live in Central Square as well.
I wonder, is there any other instance when the IRS determines value for tax purposes on something so wildly subjective?
That is an interesting point. An identity is only valuable commercially if you choose to use it commercially. It has no inherent value. Given that this is a relatively new phenomenon, how does one them decide what the taxable value is? With real estate we can guess based on other similar properties; stocks and bonds have nominal values; even rights to a book could have projected sales; but what is an identity? With real estate and stocks the value may increase dramatically when not sold for long periods of time. If you let an identity sit with no activity, it could become more desirable, or the public could forget and it becomes worthless. This is another giant check in the con column.
This is not ownership, this is the ability to profit off of a persona. If you don't want people to disparage you, don't be the kind of person that people want to disparage, living or dead. You live a life, you die. People have opinions about you. What kind of world do we live in when people own historical figures? This is not only profiteering, but it controls a historical narrative. It is thought-control by privatization of history. It limits what we can discuss, what we can express, and how we can do so. Also, this 70 years after death is just the beginning. Once Disney's properties are in jeopardy, the term will extend again.
I don't think its about disparaging. Imagine that we have the technology to animate John Lennon endorsing a particular brand of, say, laundry detergent. Is that right? I don't know, but I know that we aren't that far off, given the tupac hologram. If Yoko has anything to say about it, I'm sure John won't be peddling garbage to consumers. But on the other hand, what defines property in many ways is the right and ability to alienate. One certainly can license one's image in some cases for some purposes, but one certainly can't outright sell it, as one cannot entirely disposes one's own image, being inextricably linked to it and all. Anyway it's a tough debate. My gut says bad idea, but I can see both sides.
I see this as similar to property rights. You've spent a career building something and now you can leave it to your family. Why not? This was just a topic of discussion on Talk of the Nation on Tuesday.
Because it is not a thing. What is protected is a matter of interpretation, which will have a cooling effect on expression lest anyone end up before a judge. Also, why? Do we need to monetize everything? Do Bill Cosby's kids need more than his memory and what he decides to leave them?
So, if you took the monetization out of it but the family or estate owner still had the right to deny use of image/likeness you'd be okay with that? It's the money that bothers you? It is a thing. There was just a news report that the GOP had considered using a hologram of Reagan for their convention. While it couldn't have been worse than Eastwood talking to a chair, it brings up a whole knew dimension to this discussion. What if the DNC used a hologram of Reagan saying "I hate Romney, he's a dirty, secretive thief and I think you should vote for Obama". I think his family may take issue with using his likeness in this way. They should. (for the record, they should take issue with the modern GOP doing so too). You should be able to safe guard from opposing interests using that which you've spent a lifetime amassing for their own advancement. Please expand on what you mean by "cooling effect on expression".
No. I don't like either. I don't think it would be a big deal. It might look funny, but it's a hologram of Reagan. If you have to be careful of property rights when you are parodying someone, or creating a group to discuss, critique, or celebrate someone, then you limit the discussions around that persona. There will be less of them, and they will be less dynamic. You can't dress like a Nazi with a mask of a politician's likeness in protest? There would be no OBEY.So, if you took the monetization out of it but the family or estate owner still had the right to deny use of image/likeness you'd be okay with that. It's the money that bothers you?
What if the DNC used a hologram of Reagan saying "I hate Romney, he's a dirty, secretive thief and I think you should vote for Obama".
Please expand on what you mean by "cooling effect on expression".
Great points, thank you. I am reassessing my thoughts on this based on the "cooling thoughts of expression". I do think the Reagan example is a big deal though.
Let's say you spent your life in defense of equal/civil rights and then after you are dead you ask your daughter to continue your struggle, she proudly agrees. Then the KKK starts using your likeness to recruit new members in a marketing campaign that is wildly successful. Currently, does your daughter have any legal recourse? If she clearly owned your image, she could put a stop to it. This seems pretty clear cut. How to determine if it's just a similar image/style or actually meant to be you would be difficult to determine in some instances but then that's why the jury exists.
Not just being contrarian, I don't think there's any problem with the KKK using an image of someone dead. They could use George Washington or my grandpa. I wouldn't like it, but I don't like the KKK to begin with. You can always dream up extreme cases, but they shouldn't be the guiding force. Some scenarios like this might be distasteful, but it's not reason to institute property rights over what the living deem a dead person's persona to be. I think the medicine is far worse than the disease here. We don't stop vaccinating because the adverse risk is non-zero. Most people don't want to end up in front of a jury, whatever their chances, so that pressure would prohibit a lot of expression, and IMHO pervert the historical narrative.
I listened to that program which is what led me to post this.
People will always use the image they have of you. You can't protect that. No laws can do that. But that image is not you at all. And it's free to use as one would like to. If you are worried what people will do to your image after you're dead, you should make your image something holy beyond doubt, but that wouldn't be you now would it? Why be troubled by what people might think of you? That's a very unhealthy way to live you life.
A life has ripples and consequences that can be felt long after death. If you can somehow shape those consequences in advance, wouldn't you like to? If your "image" is open to all then you could end up having horrible organizations use it to propagate horrible things. When you have the ability to bequeath it to someone(s) in particular your image is less likely to be used in ways you would find harmful. I see it less as something a person is bothered by because it effects their image/brand but more as something a person is bothered by because it could be used to help nefarious people/organizations. Edit: View it as capital. If you had a suitcase full of $million dollar bills upon your death bed, would you want anyone to be able to grab a fist full? No matter if they're murderers, rapists, saints or volunteers...? No, you'd probably have a preference where that capital was allocated. Your "persona" or "image" is also a capital producing mechanism. You should be able to allocate it how you see fit.
Wether your image is used for good or evil can't be protected by laws. Laws are always changed, reinterpreted and broken all the time. If you have any insightful ideas about the world you should share them in an unambiguous way, maybe write a book, film a documentary, have a speech on TV. If your image is a "capital producing mechanism" and you have a suitcase full of millions upon your deathbed, you are either stupid not to have spent it during your lifetime or unable to handle money and you deserve to be falsely represented.
Yeah, the suitcase was a metaphor. As for your likeness being used, imagine that your a singer and after you die some shitty band starts using a hologram of you on stage with you as their lead singer. If you were able to leave the rights to your "image/persona" to your estate (family) they could protect such things from happening. Thats all. What do you see as the downside from allowing this?
You could allow it, but it wouldn't do you any good. How do you trust your estate? Which part of your image will be "protected" and which won't? As a former fellow artist I have issues with IP laws. If you want your songs to be heard than you should stop regarding them as intellectual property. If you want your audience to pay for hearing them, you should not be wondered when they tell you (or pay you) to shut up. People are getting used to the idea that all information is free and privacy is history. So why do we still pay for music? To shift the gems from the garbage heap we will pay a finder's fee and when we're hooked on something we will support that something. The best example I can give is the Kickstarter project by Amanda Palmer which got her 1 million dollar in a week to produce an new album. Crowdfunding is the way to go.
This is an interesting topic. First of all, I understand where they are coming from. I wouldn't want that to happen to me either, even though I would be dead. However, I also see problems with this kind of law. As stated in the article, it makes your persona something you own and which can be transferred to other parties. This might be in line with the crazy American habit of expanding IP rights and making money of the strangest of things, but I see a moral and a practical objection. The practical objection is of course that you never know in whose hands "you" end up. They can do things with "you" which you never wanted. I mean, there is absolutely no way you can control this. You are dead, remember? It just does not work the way you would expect it to. (Also, 70 years is way too long. Unless you are someone like J.F. Kennedy or Mark Twain, popular culture has already forgotten about you) The moral objection is that if you make the persona marketable, you cannot be you. You cannot develop into "you". That would be wrong. A persona is more than just the punchlines or the sweaters. It is "you". Now, lets say that Marin Luther King is licensed (which he is according to the article). If we take this to it's logical extreme, then someone could not copy MLK, because he is licensed, even if that person is really similar to MLK in whatever way you like. It would hamper the personal development of people. They cannot be like MLK, because he is licensed. It is a bit like what Hitler did with Charlie Chaplin's iconic moustache. Nobody in their right mind would sport that moustache. Just like it is licensed. Hampering people in their personal development is morally wrong and I think this will be the logical extreme. All the yous and "you"s might be a bit confusing, but this is the best I can do...
This reminds me of how David Bowie incorporated himself and went "public", that's right... you can own shares in David Bowie. I know that others have done so as well; Martha Stewart, I think Howard Stern either did it or was thinking about it. I realize that they also have things that they produce and it's beyond simply their persona's, but still it's the extreme of a person being a product. When these people die, their likeness will belong to a number of shareholders. I read that the owners of the MLK estate charged close to a $million to use his likeness for his memorial in DC. That's just craziness.