Given society’s overwhelming fascination with celebrities, it may be of little surprise to learn that celebrities continue to earn money after they have passed away. However, it may astonish many how much celebrities actually do earn after their passing. According to Forbes.com’s annual list, the “Top-Earning Dead Celebrities” for 2008 earned a combined total of $194 million over the year. While Elvis Presley topped the list for the second year in a row grossing $52 million, industry analysts predicted that Marilyn Monroe and James Dean—who generated $6.5 million and $5 million, respectively—have true staying power due to their “iconic fame” that has carried each through the decades.
Accordingly, a celebrity’s postmortem right of publicity—the right to control the commercial use of a deceased individual’s identity—has emerged as a valuable source of income for a deceased celebrity’s estate, as well as a key issue in the legal arena. Although such right has not been implemented in federal law, a growing trend exists toward recognizing a postmortem right of publicity by statute or under common law. States that recognize such right have analogized the right of publicity to property rights, which are clearly devisable. Alternatively, some states have plainly rejected claims for a descendible right of publicity, finding the right more similar to a personal right that terminates upon the death of the individual.
The conflict over the existence of a postmortem right of publicity may prove particularly troublesome for celebrities who split their time between California and New York—two states that rest on either side of the spectrum. Since both California and New York courts have held that the existence of a postmortem right of publicity depends on the domicile of the celebrity at the time of his or her death, a determination as to which state law applies is required in order to discover who is entitled to the deceased celebrity’s estate and future earnings. As New York currently does not recognize a postmortem right of publicity, the recent rulings of the United States District Court for the Central District of California in granting a devisable right of publicity highlight the belief that California may be the better place for celebrities to both live and die.