MESA – GILBERT ESTATE PLANNING ATTORNEY: “DO DEAD PEOPLE HAVE A RIGHT OF PUBLICITY?”
A recent case from the Arizona Court of Appeals illustrates the stress that results among family members after the death of a loved one. And this time, it was NOT about money!
Robin Reynolds wrote two online commentaries about her mother. One was about her mother’s diminished quality life, and the other was a Mother’s Day remembrance. Apparently, Robin was promoting her book about her dog, when she stated “she wished to age gracefully and “die like [her] dog,” “not expecting anything, but happy and grateful for every kindness” she received. Robin’s sister, Sylvia, was the Personal Representative of the mother’s estate (appointed under the mother’s will; apparently there was no living trust involved). Sylvia took issue with Robin’s writings, and made a claim against Robin for violation of their mother’s right of publicity. The trial court did not buy that argument, and held that an estate had “no Right of Publicity.”
What is the Right of Publicity, you ask? It is a sub-category of the Right to Privacy that courts decided a few years ago has always been a part of the US Constitution. People (mostly celebrities) can sue others if, without permission, their image or name for their own personal gain.
The trial court held that it is not the place of a survivor to make a claim for violation of a publicity/privacy right on behalf of a deceased person. The Arizona Court of Appeals overturned that decision. It did recognize the right of the estate of a deceased person to make a claim for violation of this right of privacy, but found that in this case, there was no violation of that right. The Court held that Robin’s writings were “expressive works that do not employ Lois’s name or likeness for purposes of trade.”
It is unfortunate that these seedy details are in the public realm, and that both sides presumably paid a fair amount of money to their attorneys to argue about them. But so far, Arizona writers can rest easier, knowing that their personal writings, on blogs or otherwise, are not likely to lead to a lawsuit. Or at least, if they do lead to a lawsuit, they have a good chance of winning.