An oft-overlooked discipline of intellectual property is the nebulously titled "right of publicity" that each individual enjoys (and likely doesn't realize/know). Thanks to a number of high-profile cases in various stages of litigation, as well as the unexpected death of musician/recording artist Prince, the "right of publicity" has been the focus of much discussion. Simply stated: the right of publicity is the right of each individual to profit from the commercial exploitation of one's own name, image, or likeness (NIL) and to prevent others from profiting off of the unauthorized use of one's NIL.
Over the last several years, the two major cases getting most of the attention in connection to the "right of publicity" are/were the Sam Keller (former Arizona St. quarterback) and Ed O'Bannon (former UCLA basketball star) class actions. Both Keller and O'Bannon sued the NCAA, EA Sports, and the Collegiate Licensing Company (CLC), but on slightly different (but related) grounds.
Keller sued the three entities for violating NCAA athletes' right of publicity, and eventually secured settlement, first from EA Sports and the CLC for $40 million, and then from the NCAA for an additional $20 million.
O'Bannon sued the three entities for allegedly violating the Sherman Anti-Trust Act, in that the NCAA's rules on amateurism prohibited NCAA athletes from individually or collectively negotiating licenses with third-parties to exploit the athletes' NIL rights. The district court judge ruled in-favor of the O'Bannon plaintiffs (that the NCAA/EAS/CLC) violated the anti-trust act, and further-ruled that athletes should be paid but that the NCAA could place a cap but not less than the cost of attendance. The 9th Circuit affirmed the anti-trust violation, but reversed the payment scheme. The O'Bannon plaintiffs have filed a petition for a writ of certiorari to the US Supreme Court - essentially a request of the SCOTUS to consider an appeal for one or more reasons.
At nearly the same-time that the O'Bannon plaintiffs were crafting and filing the writ of certiorari, recording artist/musician Prince (Rogers Nelson) suddenly and unexpectedly died (on April 21) at his home in Paisley Park, Chanhassen, Minnesota. Like many states, Minnesota has a general right of publicity law that protects an individual from the misappropriation of one's NIL. However, Minnesota does not have a specific provision that protects the right of publicity interest beyond the death of the individual. In the grand majority of cases (and not just in Minnesota), the right of publicity effectively dies with the individual since the commercial viability of anyone's NIL is non-exist post-mortem. And then there is the exception: the native celebrity.
Prince was an unusual person in many (many) ways. Notably, and unlike so many that find stardom, Prince elected to maintain home-base in his native Minnesota. While some states (such as California - think Michael Jackson - or Tennessee - think Elvis Presley) have post-mortem rights that benefits the estates, and allows the estates to thwart all unauthorized uses of the NIL of dead-celebrities, Minnesota is not so clearly aligned, and to date, no court has ruled that Minnesota's right of publicity laws survive one's death. This uncertainty has lead to the Minnesota state legislature to propose a bill to allow dead-celebrities (and more accurately - the estates of dead-celebrities) to control the use(s) of the celebrity's NIL.
A more recent development concerns another group of NCAA athletes and the unauthorized use of their NIL by the fantasy sports sites DraftKings and FanDuel (Daniels et al. v. FanDuel Inc. et al. - Southern District of Indiana: 1:16-cv-01230). In that federal case, former Norther Illinois football players Akeem Daniels and Cameron Stingily filed suit against the two sites alleging that the fantasy sports companies used the NIL of many NCAA athletes without authorization (and owe damages from the unauthorized use). This case had been originally filed in Illinois, but was voluntarily dropped and re-filed in Indiana.
Why Indiana (and not Illinois)? Well, one of the quirks of the right of publicity is that the uniformity from state-to-state is not as harmonized as one might think. In fact, one state is considered to have the most-favorable right of publicity laws for celebrities: Indiana.
In Indiana, the right of publicity continues for 100 years beyond the person's death. Moreover, the Indiana statute provides for statutory damages (in lieu of proving actual damages) of $1000 per instance of misappropriation. The statute applies to non-domiciled (non-resident) persons, and merely requires that the "use" of the NIL (and other enumerated categories) have occurred within Indiana.
A similar case by NFL players (spear-headed by Washington Redskins WR Pierre Garcon) was filed in October 2015 in federal court in Maryland. The NFL players' union and the two sites settled that case in Jan. 2016. The fact that the professional sports organizations include a players' union that is heavily involved in right of publicity questions with the players (generally as a collective) assists companies like FanDuel and DraftKings with one-stop-shopping negotiations and settlement of such claims, including future licensing for authorized use. Conversely, the lack of such an organization on behalf of NCAA athletes creates challenges in creating such one-stop-shop actions.
The pub that the right of publicity has received of late shows no signs of slowing - even if these rights are generally not well-understood or even recognized by most. Because these type of rights are most often exercised (or protected) by celebrities that have much to protect in terms of image and perception, the lay person probably does not think much about such rights. However, as the estates of Elvis Presley and Michael Jackson have taught, the revenue that can be generated after the celebrity's death can be as much if not more than when the celebrity was alive.