Ray Madoff rails against a particularly ghoulish line of traffic in the intellectual property racket: making money from the public images of dead people. Trademarking the deceased is obscene.

Contrary to what the owners of these identities claim, a right of publicity that continues after death does little to protect the reputations of the deceased. American law, unlike that in much of Europe, explicitly and uniformly provides that reputational protections — including libel and slander and the right of privacy — all end at death. The expansion of the right of publicity does nothing to change this.

Instead, it has afforded riches to the heirs of the dead and the companies that represent them. Einstein’s estate has generated $76 million in the last five years. But the dead themselves — particularly those who would have preferred to avoid being marketed as a commodity — may not be so well served.

While people can provide for the postmortem exploitation of their identities, there is no legal mechanism by which they can prevent it. It is a basic tenet of wills law that a person cannot order the destruction of a valuable property interest. Therefore, if Parks had written in her will that she did not want her identity to be marketed, there is a good chance that a court would not enforce those wishes.

We take this occasion to restate our position on intellectual property, which is that it cannot be sold. If you invent something, you can license your idea, but it remains inalienably yours. Your heirs can inherit the right to profit by it (for a limited tiime) but not the right to control its use.

Drop me a line at rjk@dailyblague.com
This entry was posted on Monday, March 28th, 2011 at 10:30 am.