JFK AND THE RIGHT OF PUBLICITY
A recent piece in Gizmodo had an interesting post about the Times of London partnering with a tech company and a creative agency to cobble together the speech that John F. Kennedy would have given in Dallas on November 22, 1963, had he not been assassinated on the way there.
I don’t pretend to understand the technique used in creating this, other than it appears they picked parts of analog recordings and mashed them together to create a seamless sounding product. There’s a snippet of the 22 minute speech in the link in the first part of the blog. It sounds realistic.
But the more fascinating discussion in the post has to do with the concept of using the image, name and voice of dead people for commercial and other uses. And the central question posed by Gizmodo, is this. If the Times of London can use JFK’s voice for this project, why can’t Dorito’s use it to sell chips?
The answer is a very definitive, “maybe nothing.” And it probably depends on that state in which you’re located. What are the possible claims that JFK’s estate might assert?
Depending on the content of the use, there might be a defamation claim or a claim for “false light publicity.” These causes of action center around the falsity of the statement. And in a broad sense, a statement, or even a suggestion that a dead celebrity endorses a product is inherently false. But these type of claims typically don’t survive the death of the person affected. In legal speak, there is no “survivability” and the estate can’t bring the suits.
There is possibly a copyright claim, but that’s held by the person who created the image, not necessarily the subject of the work. So, if the photographer videographer is willing to provide a license, there’s not much chance of stopping the use on that basis.
Finally, there is the right of publicity. And that may provide some protection. Or maybe it won’t. On its face, it seems like the ideal remedy. It prohibits the unauthorized use of a person’s name or likeness for a commercial use. And unlike a defamation claim, it doesn’t depend on falsity. Unlike a copyright claim, the right belongs to the person whose image is being used, not the artist who captured it.
All of which is great. But there is the problem of survivability. Different states have different approaches. Some deal with it via statute, and others address it as a matter of common law – that is, strictly a matter of court rulings. In some states the right can be enforced by the celebrity’s heirs and in others, it can’t. And even in those states where the right survives the celebrity’s death, many provide for that right only for a limited time.
Ohio, for example, has a statute that provides for the right of publicity. And while it is survivable, that lasts only for 60 years following the person’s death. Which means November 22, 2023 will be the date Ohio no longer protects JFK’s name and likeness from commercial exploitation. We can only hope people exercise good taste.