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.
