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Friday, December 11, 2015

Sinatra's Mug and Postmortem Publicity Rights

Yesterday I listened to an entertaining and fairly illuminating Planet Money podcast about Frank Sinatra's publicity rights and his estate's (officially, Frank Sinatra Enterprises') control over the commercial use of his image.  Aside from a light-hearted, music-filled history of California's right of publicity statute--which Sinatra helped spearhead in the wake of Elvis Presley's death--I was particularly taken by the journalist's interview with his daughter, Tina, who heads FSE.  The interview raises important questions about children serving as stewards for their parents' cultural legacies.

Publicity rights are often justified via an analogy to patent and copyright; they incentivize investment in celebrity persona and/or ensure that celebrity laborers reap the commercial value of their efforts.  At times in the podcast, both the producers and Tina Sinatra speak in these terms and emphasize Frank's financial legacy to his children and the concern with others free-riding--"ripping him off"--after he died.  Although Frank did not leave his children much in the way of cash, he left lots in the way of valuable IP, which FSE has used to develop an "upscale luxury brand" around Frank's image, e.g. lounges, restaurants, special edition whiskeys.

On the other hand, much of the rhetoric in the podcast is focused on nostalgia, Frank's cultural legacy, and the integrity of his image.  Tina confesses that she can't "separate [her]self" from him; that her father is with her "every second of every minute of every hour of every day."  She is looking for opportunities to "honor her father" and to make sure that licensees of his image "keep it classy."  Although compared with other IP estates, the Sinatras appear relatively sane in terms of allowing third-party uses (but no Bobbleheads!), it's important to acknowledge the role of a family's emotional attachments in driving its decisions about the use of celebrity imagery (or popular culture in the analogous copyright context).  Publicity rights are asserted not just against traditional merchandising like t-shirts and coffee mugs, but against a range of commercial goods with a strong expressive element, such as video games.  (See cert petitions in Davis v. EA).  Accordingly, in trying to achieve a better balance between IP rights and free speech, it's crucial for scholars, judges, and lawmakers to see how family members' feelings of nostalgia, prestige, and legacy can skew the equation.  Estates are often some of the most notoriously litigious IP holders, and it's important to account for the differences in motivations and incentives between the initial rights holder and his or her successors.  There's wide variation in the postmortem terms between states (zero in New York; 100 years in Indiana), so any effort to amend/harmonize these protections would ideally account for the psychology of the IP estate. 

Lastly, in light of the substantial postmortem term in many states (and the life +70 term in copyright), this story does point to the importance for celebrities, artists, and authors to actively think about and plan for cultural stewardship of their works after they die.  Frank Sinatra sat down with his children long before he died and asked them to take the helm of Sinatra licensing.  He also communicated to them, "I don't want to end up on a f***ing coffee mug."  While as a matter of cultural policy we might not want to defer categorically to the wishes of deceased celebrities, much of the mess around postmortem rights arises when the rights holder dies intestate.  See, e.g., MLK, Jr. and Marvin Gaye.  

To keep up on all things publicity rights, I want to second last month's endorsement of Jennifer Rothman's new website.

 

Posted by Andrew Gilden on December 11, 2015 at 05:53 PM in Culture, Intellectual Property | Permalink

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