Some notes on property rights and identity, from an article in the New York Times, March 28, 2011
Ownership of a person’s identity after death is regulated by the states. Each one does it differently. In New York all such rights expire upon death. So, because Marilyn Monroe was legally a resident of New York State when she died, any one can use her likeness or identity for any purpose.
You can’t use Einstein’s likeness or identity without permission, and without paying a fee.
There is no legal mechanism by which a person who disdained endorsements in his or her own life can prevent others from selling their name or image after death. Too bad Chaplin, Hendrix, Einstein. If Einstein had expressly declared in his will that he didn’t want his face and name to be used to hock automobiles– too bad. It’s like the courts would have nullified his wish.
Guess what– the right of publicity is taxable. So the heirs of a famous person’s property may have to sell those rights simply to pay the taxes on the value of those rights. That seems very wrong. The law essentially seems to require that a person’s good name and image be despoiled.
In fact, that seems repellent. Are the courts actually insisting the government has the right demand the commercial exploitation of deceased celebrities, because, that, in fact appears to be the case. (Unless the tax only kicks in if the property is sold. That actually makes more sense. The Times article was not clear on the point.)
Did you know that it is accepted tenet of will law that a person cannot demand the destruction of property or assets in his or her will?
Well, he or she can “demand it”, but courts will generally rule against it.