74 Am. U. L. Rev. 419 (2024).
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Abstract
Post-mortem Right of Publicity (ROP) statutes have grown from relative obscurity and of little value to a reliable source of nonwage income for those lucky enough to be the legatees of a famous now-deceased person. Unlike most other intellectual property rights, there is no federal ROP statute. Rather, an individual’s ROP—both while alive and post-mortem—is governed by state law. This has led to a widespread range of term lengths for this right among the states that have either common law or statutory post-mortem ROP rights.
While there might be some value in them, if the post-mortem ROP term is too long or infinite, it can exacerbate wealth disparities; famousness provides a multi-generational benefit to those who have done nothing to earn the fame they are now exploiting and is yet another avenue by which non-wage wealth accumulation moves upward.
The problems of a lengthy post-mortem ROP are the same issues that were used to rationalize the Rule Against Perpetuities (RAP), where the dead have a limited time in which to control their assets from beyond the grave. We can thus appreciate that a decedent’s postmortem ROP should be limited for analogous reasons to those under RAP. Limiting the term of a post-mortem ROP would promote industriousness, limit the accumulation of unearned wealth, and avoid the rent-seeking and other problems associated with a ridiculously long-term control of the rights to a decedent’s exploitable fame. Famous dead people should not have their personal rights in their name, image, and likeness (NIL) controlled and exploited by their descendants for longer than one generation after the famous person’s death. This is a simplified, but analogous, term length to what is considered acceptable control of property by the dead under RAP.
This Author thus argues that the optimal term length for the post-mortem ROP should be either twenty-five years after the death of the famous person or the death of the last surviving child or spouse of the famous person, whichever comes first. This will ensure that at least one generation of descendants has the ability to exploit their dead parent’s or spouse’s fame, without such exploitation becoming a multi-generational personal welfare system. One generation of control should be enough.
* Professor of Law and Faculty Advisor of the Intellectual Property Law Concentration program, Saint Louis University School of Law. Special thanks to Camilla Hrdy, Deborah Gerhardt, Ann Bartow, Sharon Sandeen, Julie Cromer Young, BJ Ard, and Michael Schuster for virtually workshopping a draft when the Article was in its infancy, as well as to Brad Fogel, Mark Lemley, and Saurabh Vishnubhakat for their very helpful comments and suggestions. Incredibly useful feedback was received by participants of the 2024 Intellectual Property Scholars Conference in Berkeley, CA, particularly the comments and suggestions of Jennifer Rothman, Christa Laser, Jacob Noti-Victor, and Tim McFarlin. Additional thanks to Sapna Kumar and Matt Sayler for brainstorming the title. The Author also thanks her former student Candace Ruocco Valentine, whose direct research project ten years ago tackled where the best place was to be domiciled at death if you are rich (estate taxes), famous (post-mortem ROP), or both. Her paper was the slow-growing inspiration for writing this Article. The research assistance of Edna Besic, Jay Hollman, Kenzie Jarva, Ann Shady, Monica Thompson, Bre Booker, Jessica Chong, Denisha Odie, and Sarah Hunter has been invaluable, and all have my sincere thanks.