Rights After Death For Celebrities.

What do the heirs of a rock musician, popular novelist, screen idol, comic strip creator and health guru have in common? Valuable personal rights that are often overlooked or underdeveloped by artists and celebrities during their lifetimes, leaving their heirs to wonder what is left and how they might be exploited, especially as the artist or celebrity grows more legendary by the day. Then begins the difficult, time consuming and fascinating task of assembling, bit by bit, the intellectual property rights belonging to the artist or celebrity, and the search for marketing and merchandising opportunities for those rights. Of course, this is better done during one's lifetime when it is possible to tap into living memory, documents and sources of memorabilia and when marketing opportunities can include personal endorsements and original creations.

Because there are many types of personal and intellectual property rights, the initial task of identifying and assembling them frequently requires the knowledge and skill of a seasoned intellectual property lawyer. There are many factors that come into play, especially if the artist or celebrity has lived, worked or published in different countries or performed services under "work for hire" agreements. What follows is a brief outline of possible intellectual property rights, all of which may or may not apply in all circumstances.

The single personal right that every artist or celebrity will have is a "right of publicity"; although it only exists domestically by statute in about twenty states. It covers the right to use the persons name, voice or likeness in any commercial manner. The duration of the right of publicity varies, but usually ranges from the life of the famous person plus fifty years, to life plus one hundred years. Although the most famous cases (like the recent 'Three Stooges" case in California) are filed in order to stop others from using the celebrity's name, voice or likeness, the right of publicity offers a variety of licensing opportunities for heirs, ranging from television, radio and print commercials to T-shirts, lunch boxes, games and a vast variety of other goods and services.

Another common right is found in the field of trademarks. This is the artist's or celebrity's right to use his or her name as a trademark or "service mark" (a trademark used for services). Searches of existing marks should be performed to ensure that no one else has the right to use another trademark that is "likely to be confused" with the name, and to be protective, trademark applications should be filed to cover the goods and services most likely to be offered. Here, geography plays a role because each country has its own trademark registration docket (except in the European Union where it is possible to file an application that covers all EU member countries), Cost can also be an issue since each trademark application for each class of goods and services in each country involves a separate application fee and local legal counsel (there are 42 International Classes and more than 250 countries). One rule of thumb is that a trademark registration costs $1,000 to $2,000 per trademark per class per country, w hich adds up quickly. However, the advantage to trademarks is that properly protected, used and documented, they can last forever.

Domain name rights are related to both trademarks and rights of publicity. There have been a number of highly publicized cases in which domain names containing a celebrity's name have been transferred to the celebrity after legal action or the dispute resolution process mandated by ICANN (The Internet Corporation for Assigned Names and Numbers) or under the Anticybersquatting Consumer Protection Act. On the other hand, some courts have refused to transfer domain names where they could find no "commercial" use, especially where the domain name was used by a fan club only sharing information about a favorite star. Where possible, the careful approach is to reserve the most marketable domain names during the lifetime of the celebrity or artist to preserve the right to use them in the future. The Estate should perform an Internet search to discover what domain names are already taken and those websites should be reviewed to determine whether enforcement is required.

It is not generally understood that artists retain the copyright in their creations even after they sell the original works, unless they have transferred all such rights to the purchaser or have created the piece as a work made for hire. This means that the purchaser of a visual image, for example, cannot use that image for commercial purposes on clothing, stationery, books, posters, postcards, toys or anything else unless there is a written copyright license or assignment. The flip side is that the heirs have the right to exploit all the rights contained in the copyright for all those purposes and more. To accomplish this, the Estate must assemble a detailed catalogue of all the intellectual property ever created (whether images, music, writings, recordings, notes, sketches, etc.) and then apply a detailed legal analysis. Factors to be considered include whether the work was ever published, when and where it was published, whether copyright registration was obtained, and whether a copyright notice was used.

Opportunities to publicly display the artist's or celebrity's work are often necessary in order to create or maintain public recognition, making it vital for the Estate to support museum exhibitions, film festivals, performances and the like. A review should be conducted of written material about the artist or celebrity and, if lacking, the Estate might consider commissioning a biography or monograph. Material written by the artist or celebrity is of special value if it is publishable, since the Estate probably owns the copyright.

Finally, the Estate can seek the assistance of a licensing and merchandising agent or consultant to review the assembled rights and works, advise on potential exploitation and solicit potential licensees.

Susan A. Grade and Katherine L. McDaniel are with Katten Muchin Zavis.