Thanks for all the great insights every month. My question - What rights do extended family have in terms of a bio pic on a deceased public figure? How long does someone have to be deceased for their story to be considered public domain?
Answer by Brandon Blake, Entertainment Lawyer:
A great question about life story rights, how long after death those rights can extend, and who holds the rights to a deceased celebrity. First, the phrase “public domain” only legally applies to the copyrights in a creative work. Terry Gene Bollea (aka Hulk Hogan), had his entire copyright case against Gawker dismissed and yet went on to win $140.1 million under the same claims that can be brought against a producer for failing to obtain life rights to a project.
Copyrights are important, and copyrights often form part of a life story grant of rights, but such rights are only a portion of what is being acquired in a life rights deal. Why is that matter? Because while U.S. copyrights have a specific duration that can be calculated based upon when the work was first created and whether the term of copyright was renewed or extended, other rights have no such fixed duration, and cannot be so easily be measured in a number of years.
The term of U.S copyright is presently the author’s life plus 70 years, or for works made for hire 95 years from publication or 120 years from creation, whichever is shorter. Due to the number of questions I get about copyright duration, and the complexity of the subject, I am planning a separate article in two weeks that delves into the specifics of U.S. copyright duration, so please be sure to follow us on Linkedin, Facebook or Twitter so you do not miss our next issue.
The second term that is probably incorrectly used in the question is “public figure.” Unless the person in question was a former President or Congressmen, then the term public figure probably does not apply. The reason is that the term “public figure” applies to a particular constitutional test for defamation, limiting the claims that public figures can bring. So public figures are typically political figures, or those that have become involved in a public issue or debate. While cases have found some celebrities at some times to be public figures, the vast majority of defamation cases involving celebrities do not involve constitutional questions.
So what rights do extended families hold to a deceased celebrity’s life story? The answer is basically in two parts. First, we should address the rights that the family members may have inherited from the celebrity. Many rights to intellectual properties, including life stories, can be transferred by will or inheritance in the same way as any other property. So copyrights, trademarks, and rights of publicity can all be held by extended family, provided that such rights were transferred to them from the deceased.
The second part addresses what rights that extended family member might hold personally, by being part of the story. So, for example, if the extended family member appears in the story being told as a character, then that person will have privacy rights, defamation rights, and their own potentially copyrightable stories, which they acquire by basically being in the right place at the right time. These rights are not going to be administered by the Estate of the deceased celebrity, because the rights are personally owned by the relatives. This can be a benefit to a project, because it is sometimes possible to acquire the same story rights from another family member, rather than through the Estate.
Regarding the duration of protection for life story rights, I already mentioned the general standard for copyright duration above. However, trademarks do not ever terminate, provided the marks are continually renewed. This can apply both to celebrities’ names and likenesses, as well as characters in famous works. So, for example, the character of Peter Rabbit was first published in 1902, and is officially in the “public domain”, yet in August of 2003 a publisher (in China no less) was fined $42,200 for publishing an un-licensed Peter Rabbit book based on trademark law, not copyright infringement. UK based Frederick Warne & Co Ltd holds international trademarks on the Peter Rabbit character.
Likewise, the Estate of Mark Twain still protects the likeness, name and signature of Mark Twain, and exercises considerable control over publishing works by the author that died in 1910.
While there are some rights that will terminate on the death of the celebrity, such as the rights of privacy held by the celebrity him or herself, other rights can theoretically last perpetually, such as the right of publicity. Certainly there are many Estates, including those of Marilyn Monroe, Elvis Presley, and even Salvador Dali, who will protect the images, likenesses and stories for as long as there are fans that remember them.
As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.
- By Brandon Blake, Entertainment Lawyer