Personality Rights - Using deceased famous people in art works.

[jbdesign82]

What is the name of your state (only U.S. law)? West Virginia

Do personality rights work similarly to copyright in that they can only last 70 years after their death. So would I be completely safe creating content involving people who died prior to 1947 since 2017 would mark 70 years after their death?

Since in the US personality rights are issued on a state by state basis, how does one determine if the personality rights to a deceased famous person are owned? What state office would keep this information? Surely it would have to be registered by some heir or company?

Also, personality rights seems to be created with the intent to protect consumers more so than the famous person, for example a company can't use a celebrity in their product add to imply endorsement unless that celebrity grants them permission...so how does this apply to deceased people? For example if I wanted to make a Bob Marley decal and sell it, would that be okay since I am not using it to endorse any particular product, even if his personality rights are owned; pending of course my decal didn't use any copyrighted or trademarked imagery or text.

Are politicians exempt from this, IE if I wanted to create a decal of John F. Kennedy, since he was a public servant, could his personality rights be protected in the same way a celebrities might be or would such public servants be exempt for personality rights protection?

I know this is several questions, so thanks in advance.

 

[FlyingRon]

Seventy years after death is a California thing. The other states are a mix of different statutes and common law treatment of publicity rights. Some provide for posthumous rights, some do not. However, you can expect to get grief from any heir who cares to make a fuss.

 

[jbdesign82]

Seventy years after death is a California thing. The other states are a mix of different statutes and common law treatment of publicity rights. Some provide for posthumous rights, some do not. However, you can expect to get grief from any heir who cares to make a fuss.

I found a list of which states have statues and which ones have common law...but what is the difference and how are the rights determined? Does it depend on where the person was born or where they died?

How does this apply to other countries. For example if I wanted to use Williams Shakespeare on art work I'm selling in the U.S. would I be exempt from any laws regarding personality rights in the U.K.?

 

[quincy]

What is the name of your state (only U.S. law)? West Virginia

Do personality rights work similarly to copyright in that they can only last 70 years after their death. So would I be completely safe creating content involving people who died prior to 1947 since 2017 would mark 70 years after their death?

There are major differences between copyrights and personality rights. Copyrights are protected federally and personality rights are protected under state laws, which vary substantially.

Some personality rights (also called publicity rights) die with the death of the person and others can last forever, in the form of trademarks.

Since in the US personality rights are issued on a state by state basis, how does one determine if the personality rights to a deceased famous person are owned? What state office would keep this information? Surely it would have to be registered by some heir or company?

You can look to trademark registries. The rights to a deceased person's persona are inherited rights so it will often be the estate of the person who registers and protects the rights.

Also, personality rights seems to be created with the intent to protect consumers more so than the famous person, for example a company can't use a celebrity in their product add to imply endorsement unless that celebrity grants them permission...so how does this apply to deceased people? For example if I wanted to make a Bob Marley decal and sell it, would that be okay since I am not using it to endorse any particular product, even if his personality rights are owned; pending of course my decal didn't use any copyrighted or trademarked imagery or text.

The rights are enforced by the holder of the rights to preserve the reputation and value of the deceased person's name (image, etc). Whether the unauthorized user is using the rights-protected name, image, etc. commercially is not the only consideration. Even non commercial uses can harm value.

Are politicians exempt from this, IE if I wanted to create a decal of John F. Kennedy, since he was a public servant, could his personality rights be protected in the same way a celebrities might be or would such public servants be exempt for personality rights protection?

Politicians have personality rights. Everyone has the right to control how their name and image is used commercially. Some politicians have enforced these rights (Arnold Schwarzenegger) and other politicians haven't (Bill Clinton).

If you want to use a dead person's name or image, you need to see what (if any) rights have survived that person's death and then seek out permission from the holder of the rights prior to use.

 

[quincy]

I found a list of which states have statues and which ones have common law...but what is the difference and how are the rights determined? Does it depend on where the person was born or where they died?

How does this apply to other countries. For example if I wanted to use Williams Shakespeare on art work I'm selling in the U.S. would I be exempt from any laws regarding personality rights in the U.K.?

If the Shakespeare artwork is work you create on your own (i.e., is not based on the copyrighted works of others), you can use his name and image. His works and rights to his name and image are in the public domain.

Whether existing rights exist and/or can be enforced depend on many factors, including when and where the person died, whether name and image are trademark-protected, the estate rights established.

You will want to research carefully any individual whose persona you wish to use.

 

[jbdesign82]

If the Shakespeare artwork is work you create on your own (i.e., is not based on the copyrighted works of others), you can use his name and image. His works and rights to his name and image are in the public domain.

Whether existing rights exist and/or can be enforced depend on many factors, including when and where the person died, whether name and image are trademark-protected, the estate rights established.

You will want to research carefully any individual whose persona you wish to use.

Wow Quincy, thank you for such thorough answers. Perhaps instead of trying to find which names are trademarked it would be easier for me to just get a list of those in the public domain. Is there an "authoritative" database of names that are in the public domain? For example, how did you find for certain William Shakespeare would be in the public domain?

Thank you for the information. It is much appreciated!

 

[quincy]

Wow Quincy, thank you for such thorough answers. Perhaps instead of trying to find which names are trademarked it would be easier for me to just get a list of those in the public domain. Is there an "authoritative" database of names that are in the public domain? For example, how did you find for certain William Shakespeare would be in the public domain?

Thank you for the information. It is much appreciated!

Following is a link to a chart showing what copyrighted works are in the public domain. It lists years and criteria, not names.

http://copyright.cornell.edu/resources/publicdomain.cfm

For publicity rights, you can do an Internet search by individual names, and using "estate of [name]" can turn up sources to the information you seek. You should consider the source and verify what you learn in your search, however.

You can also go to the United States Patent and Trademark Office website and do a trademark search of names. Here is a link: http://www.uspto.gov

You are apt to find there are trademark rights in the names of the more recently deceased famous people (like Michael Jackson, Prince). Rights tended not to be as well protected long ago (although there are exceptions, like Charlie Chaplin).

And there is a good website on publicity rights that you can find by searching "right of publicity."

Good luck.