The New York Times posted an opinion piece about a person’s right of publicity after death on March 27, 2011, titled “The New Grave Robbers” by Ray D. Madoff. I saw this article mentioned on the TaxProf Blog. The opinion piece argues in favor of federal legislation to limit the duration that a person’s right of publicity lasts after death.
As the article mentions, currently a person’s right of publicity is handled by state law. Not all states have a right of publicity. For those states that do have a right of publicity, some say the rights end at the person’s death, and others say the rights continue after death.
State and federal laws also protect a person’s right of privacy, but most of these privacy protections end at the person’s death. The January 29, 2010, California Court of Appeals decision in Catsouras v. Department of California Highway Patrol, 104 Cal. Rptr. 3d 352 (Cal. App. 2010), determined that surviving family members have a right to sue for invasion of privacy in “death images of a decedent.” Previously, California cases said that a person’s right to privacy is purely personal—that right dies along with the person. The California Curt of Appeals distinguished the “death images of a decedent” from written or pictorial media regarding the life of the person, noting, “Families have a right not to be embarrassed or humiliated by the outrageous display or exposure to public view of the remains of a loved one.”
For family members and fiduciaries dealing with a person’s right of privacy or right of publicity after death, a significant challenge is enforcing those rights on the Internet. For copyright infringement, there is a streamlined process to enforce the copyright on the Internet by contacting online service providers with a DMCA takedown notice and requesting that they remove infringing uses promptly. I previously wrote about the DMCA takedown notice procedure in more detail. There is no similar, streamlined procedure to enforce a right of privacy or right of publicity. For example, in the Catsouras case mentioned above, the court documents allege that “graphic and horrific photographs” of an accident scene were taken by the California Highway Patrol and then leaked to the Internet. The family members reported that they hired a firm to get the photos removed from Internet sites. As of May 2010, they removed the photos from about 2,500 Web sites, but the photos reportedly continue to spread on the Internet faster than the firm can remove them (cite). As part of this court process, the family members are asking for copyright ownership of the photos so they can use DMCA takedown notices to request that the photos be removed from the Web sites.
For more information about recent developments and proposals on intellectual property rights on the Internet and in digital property, see my recent posts about the March 16, 2011, Senate Committee on Commerce, Science, & Transportation hearing on The State of Online Consumer Privacy and the March 15, 2011, Obama Administration White Paper on Intellectual Property Enforcement Legislative Recommendations.