Singers, musicians and other performing artists work hard to build a career, which today often requires maintaining an active concert schedule. If the artist dies or becomes incapacitated, that means no more live concerts – or does it?
Thanks to new technology, amazingly lifelike holograms of departed performers such as Roy Orbison, Whitney Houston, Elvis Presley, Michael Jackson, Frank Zappa and many others are drawing crowds to concert tours where the performers sing, dance and even banter with the audience.
A recent article about holographic concerts in the New York Times points out that the music industry’s shift to streaming means that recording artists can no longer count on revenue from CD sales and downloads to support their heirs. As an executive of one company that creates holographic concert tours of departed rockers told the newspaper, “We have to put them back on the road.”
Getting a hologram to sing onstage typically involves the use of computer-generated imagery, a live performer whose movements are used to animate the holographic image, lip-syncing to a track of the singer’s music, sophisticated projection equipment, and even live backup singers and musicians.
But it also requires that the performance comply with the legal rights of the departed artist, which after death belong to their heirs. Those rights can vary widely, depending on where the artist lived.
Each of us, famous or not, has the right to control how our name or likeness is used for commercial purposes. But what happens to that right after we die? That can vary from one state to another.
California affords its residents a statutory right of publicity (California Civil Code Sec. 3344.1), which bars the unauthorized use of another person’s name, voice, signature, photograph or likeness for the purposes of advertising or promotion.
These rights continue for 70 years after death, and can be transferred to heirs. To secure these rights, heirs must file a simple registration form with the California Secretary of State.
The postmortem protection requires that the person’s identity have a “commercial value” at the time of death, but it does not require that he or she actually exploited their identity commercially during their lifetime.
Some other states do not recognize any right of publicity after death. When Marilyn Monroe died in 1962, her estate tried to stop unauthorized use of her images, noting that she died in California. But the courts ruled that she was a resident of New York, which has no postmortem right of publicity, so her estate lost.
By contrast, when a car company used Albert Einstein’s image in an ad for a 2010 SUV, the courts ruled against the automaker because the famed scientist, who died in 1955, had been a resident of New Jersey, which did recognize a right of publicity after death.
The postmortem right of publicity not only varies from one state to another, but in some states residency is the determining factor, while others grant the right to those who happen to die while in the state, or even had a less substantial connection to the state.
It is frequently necessary to value the deceased celebrity’s rights of publicity as of the time of death for tax purposes. This valuation may be subject to challenge by the Internal Revenue Service.
That process can be protracted. For example, Michael Jackson’s publicity rights were appraised at the singer’s death in 2009. After the IRS contested that valuation, the dispute was submitted to the Tax Court in 2013, and a ruling still has not been issued.
For performing artists and the professionals who advise them, this means that careful thinking about postmortem right to publicity must be included in their estate planning, as well as about who will control those rights and how they will be licensed and monetized.
By Michael R. Morris