Life after death…for celebrities, anyway.

“I don’t want to achieve immortality through my work; I want to achieve immortality through not dying.”

-Woody Allen

Michael Jackson

He performed last night…even though he is dead.  And I was totally creeped out.  I am referring, of course, to Michael Jackson’s performance at the Billboard Music Awards.  He sang, danced, and had background dancers, all despite the fact that he’s been dead for almost five years.  He’s still a great performer, which is weird to say but even odder to think about.

The entire time he sang and danced, as I watched with horrid fascination, I was also thinking of the other celebrities who still show up in our modern day world: Audrey Hepburn’s new commercial, Charlize’s hobnobbing with dead Hollywood icons, and Fred Astaire dancing with a vacuum cleaner.  How surreal would it be to know that, after we pass, others can take our image – our faces, our moves, our voices – and make us dance for their purposes (and their profit)?

Fortunately, for most of us, that isn’t much of a concern (yet).  But if you’re a celebrity, it’s a reality.  Certainly not every celebrity will be turned into a hologram, a la Michael last night, but there is the risk that their image could be used to support a business without their permission.  So what does the law have to say about that?

Just over half of the states have a “right of publicity,” which recognizes that individuals have a right to control the commercial use of their name, image, and likeness.  But not all of those states protect an individual’s publicity rights after death.  New York, for example, does not recognize a post-death right, as raised in a case involving Marilyn Monroe’s post-death publicity rights, which the Southern District of New York held did not exist.  See Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y.  2007).  In other words, after you’re dead, you can’t stop others from using your image for their purposes.

In 1985 in California, however, an act was passed to protect celebrities’ publicity rights after death.  Known as the Astaire Celebrity Image Protection Act, it protects publicity rights post-death if certain conditions are met.  It was even amended in 2007 to specifically address the Marilyn Monroe situation, to protect celebrities who had died before the Act was passed.

So all this means that, presumably, Michael passed down his publicity rights to his heirs, which meant they were the ones who okayed Billboard pulling his strings last night.  Celebrities today must be aware of this reality – that even after they pass they will continue to be used to entertain and to sell products and services – and it’s certainly one aspect of today’s celebrity lifestyle I don’t envy.  I may fly coach and age naturally, but at least I don’t need to worry about any puppet masters making me dance after I die!


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Jessica has been litigating business and IP disputes for the past decade. During that time, she’s dealt with clients, lawyers, and judges who have varying degrees of appreciation for the challenges of managing discovery in an electronic age. Until the fall of 2011, she was an attorney at a large, Texas-based law firm, where she represented clients in state and federal court nationwide. That fall, she made a long-desired move back to the Midwest and is now a partner at Hansen Reynolds Dickinson Crueger LLC, a litigation boutique based in Milwaukee, Wisconsin, where she continues to litigate while also consulting with business and law firms on e-discovery issues (before, during, and after litigation arises).