Right of Publicity -- 2011 In Review
When a famous person dies, the survival of the right to control and profit from their name and likeness depends on when they died and what state they lived in at their death. Famous artists may need to take a closer look at where they call home during their life to insure their right of publicity has a home post-death. After losing a battle in 2005 to have Jimi Hendrix's right of publicity protected by New York state law, where Hendrix lived at his death, Hendrix's heirs worked to amend the Washington state right of publicity law. Hendrix's heirs sued under the newly amended law. In 2011 a trial judge held Washington’s Personality Rights Act, that allowed anyone to sue in Washington to enforce their rights regardless of where the lived when they died, was unconstitutional. The trial court's decision has been appealed to the Ninth Circuit.
This year an Indiana court ruled that Indiana's post-death right of publicity law cannot be applied retroactively. The court ruled John Dillenger's heirs have no claim to Dillenger's name and likeness because Dillenger died before Indiana had a posthumous right of publicity.
A California district judge's decision ruling Marilyn Monroe was a resident of New York at her death is on appeal to the Ninth Circuit. If upheld, Monroe's post-death right of publicity would not be protected by changes to the California right of publicity statute which granted retroactive protection to famous California residents who died before 1985. See Milton H. Greene Archives, Inc v. Marilyn Monroe LLC, 08-56471 (9th Cir. filed 2008).
