The Right of Publicity and Dead People… A Happy Birthday to Elvis

I write this on the eve of what would have been Elvis Presley’s 75th birthday.

Frankly, I could care less. I’m about as far from a fan as I am from Memphis, Tennessee.

So why mention it? Because the King’s estate continues to command a king’s ransom by zealously protecting and exploiting its IP rights. These include Elvis’ music, of course, but also the trademark in his name and his right of publicity.

Also known as the right to one’s name and likeness, the right of publicity comes into play when a third party makes an unauthorized commercial use of a person’s name, likeness or voice. This right is codified by statute in most states. In California it is Civil Code Section 3344. (See also Restatement (Second) of Torts § 652 (the right to privacy is invaded by, inter alia, the appropriation of another’s name or likeness).)

So, you’re thinking, how would this happen? Let’s say for example you’re on your way into the supermarket, when you’re stopped by a pretty girl standing by a stack of toothpaste samples. She smiles, giggles and asks you to try the toothpaste. This is the most excitement you’ve had in weeks, so you give it a whirl.   And in an effort to be polite, you say it’s wonderful. She thanks you and snaps your picture as you saunter into the store, trying to get that funny taste out of your mouth.

Weeks later, you see your image in a magazine ad: the toothpaste company has used the photo of you from the sample booth without your consent. By doing so, they have misappropriated your likeness for a commercial purpose.

Most states recognize a claim for misappropriation of name or likeness. However, even in those states that don’t, a claim can be made under 15 USC § 1125(a). That’s the federal Lanham Act, and it likewise prohibits the unauthorized uses of a person’s identity for purposes of creating a “false endorsement.”

So what does this have to do with Elvis who — despite what the Weekly World News may report — is D-E-A-D (so get over it)? Well, while Elvis may be dead, his right to publicity lives on. This is just one more benefit to being a celebrity. (In California, a celeb’s right to post-death publicity is found in Civil Code Section 3345, and I for one believe that it should be renamed the “Zombie Statute.”)

When last I checked, twelve states have “Zombie Statutes,” where a celebrity’s right of publicity survives his or her death. As to how long after death these rights hang around, it varies from state to state (ranging from about 10 years to 100 years). The duration in Tennessee (e.g. home of Graceland) is indefinitely as long as the right continues to be exercised. Is Tennessee also the birthplace of polyester? I’m just wondering.

So, on the anniversary of Elvis’s birth, and in light of the myriad of Elvis sightings, we also celebrate the Zombie Statues. Yet, I’ve got to think that Michael Jackson makes the better poster child for anything named “Zombie.”  When’s his birthday?

Jonathan Pink heads the Internet and New Media Team at Bryan Cave, LLP. His practice focuses on intellectual property and business litigation matters, including claims for trademark, copyright and patent infringement. He is resident in the firm’s Irvine (Orange County) and Los Angeles offices.