GONE THE WAY OF THE BUFFALO
Last week I
got an email 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 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.
on. Our friends at the Future of Music
Coalition are holding their incredible annual Policy Summit at Georgetown
University in Washington DC November 15-17.
Thursday and Friday are the policy panels, where you can learn about
where the indy 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 indy 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
some more. A case came out of the
California federal appeals court last week that was more than a little
mind-boggling. 50 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.
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
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 x-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.
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 Mellancamp’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,
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
made decades ago. New York it is, and
adios publicity rights!
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
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 that fifty 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.