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Gone the Way of the Buffalo

by Paul Rapp on September 7, 2012

Last week I got an e-mail from a Berkshire Eagle writer who was concerned that my last article could be interpreted as saying that the Eagle ignored the story about the Berkshire blogger being ordered by a local judge not to write anything about a politician’s daughter. I think I was fairly clear in faulting the Eagle for not coming to the defense of the blogger (and the First Amendment), but I wasn’t crystal clear, and the Eagle writer’s point was well-taken. The Eagle did cover the story; that’s where I learned about it. The Eagle’s failure was in the editorial pages.

Moving on. Our friends at the Future of Music Coalition are holding their incredible annual Policy Summit at Georgetown University in Washington, D.C. from Nov. 15 to 17. Thursday and Friday are the policy panels, where you can learn about where the indie music biz is heading from the people who will make it happen. Saturday will be nuts-and-bolts workshops, seminars, and presentations for working musicians and other folks on the front lines of the indie music world. I can’t recommend this conference enough; it’s brilliant, it’s fun, and it’s cheap. And there are always parties at night. For more info, go to futureofmusic.org.

Moving on some more. A case came out of the California federal appeals court last week that was more than a little mind-boggling. Fifty years after her death, people are still fighting about Marilyn Monroe’s stuff. In this case, it was about her right of publicity, whether her estate could control the commercialization of her image and likeness. The whole shebang depended on whether at the time of her untimely demise Marilyn was a citizen of California (where she breathed her last and had a house) or of New York (where she had an apartment and ran her production company). The reason her citizenship (or as lawyers call it, her domiciliary-ness) was the big issue was because California recognizes a posthumous right of publicity to any person “whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death.” This right continues for 70 years after the famous person croaks. In Marilyn’s case, this right is worth a pile of money.

New York, rather surprisingly, has no such law. New York has a statute that bars the use of any living person’s image “for commercial purposes,” which has been determined to mean in advertising, without permission. But New York’s law is fundamentally concerned with privacy. It doesn’t matter whether you’re famous or not; you’re entitled to not have your mug stuck up on a billboard without your OK. And once you kick the bucket, not only are you an ex-person, you don’t have a right of privacy any more! Dead men don’t blush! By contrast, California’s law creates a property right in a person’s fame, and allows the famous person’s heirs to protect and exploit that fame after the famous person has passed on to that great Chateau Marmont in the sky.

A handful of states have laws like California’s. Indiana, for example, protects a famous person’s right of publicity for something like 100 years after the famous person ceases to be, which must make John Mellencamp’s kids happy. Does Larry Bird have kids? Anybody else famous from Indiana? Buehler?

Now, dead peoples’ stuff is traditionally a state matter. Wills and trusts are largely controlled by state statutes, with an occasional federal issue involving things like taxes. But really, a right of publicity, something involving famous people? Shouldn’t there be a one-size-fits-all federal law? The Marilyn Monroe matter puts it all in perspective: big money, big icon, and an all-or-nothing fight that hinges on where she was “domiciled” when Marilyn took that last big sleep. A big, artificial, pointless brouhaha.

So what happened? As it turns out, years ago, her estate (which was mostly left to acting coach Lee Strasberg) fought tooth and nail to establish that Marilyn was a domiciliary of New York at the time she stepped on the rainbow, in order to avoid a steep California estate tax bill. Then California enacted the right of publicity law and made it retroactive. Oops! The California appeals court ruled that Marilyn’s estate couldn’t now change horses in the middle of the stream and suddenly reopen the issue of Marilyn’s status and make arguments that are exactly opposite of those made decades ago. New York it is, and adios publicity rights!

This was one of those great, entertaining decisions, with the court name-checking Nicky Minaj, Maureen Dowd, and the Coachella festival on the first page, and then finishing with as sweet a close as you’ll ever see:

“We observe that the lengthy dispute over the exploitation of Marilyn Monroe’s persona has ended in exactly the way that Monroe herself predicted more than 50 years ago: ‘I knew I belonged to the Public and to the world, not because I was talented or even beautiful but because I had never belonged to anything or anyone else.’”

 

Paul Rapp is a frisky art-and-entertainment attorney who believes in the Buffalo Bills