POSTHUMOUS PUBLICITY RIGHTS: LEGAL AND SOCIO-ECONOMIC IMPLICATIONS IN THE DIGITAL AGE

Description

The concept of posthumous publicity rights has emerged as a critical intersection of intellectual property, privacy, and commercial law, particularly in light of increasing digital reproductions and media commercialisation. Posthumous publicity rights encompass an individual’s ability to control the commercial use of their name, image, and likeness even after death. This right is having legal as well as socio-economic implications.^[i] This paper undertakes a comprehensive review of the legal frameworks governing posthumous publicity rights across multiple jurisdictions, including the United States, Germany, France, and India, and highlights how civil law countries provide more explicit statutory protection compared to common law systems, which rely heavily on judicial precedents. Through a critical analysis of case laws, including Zacchini v. Scripps-Howard Broadcasting Co.^[ii], Marlene Dietrich Case^[iii], and K.S. Puttaswamy v. Union of India^[iv]., the study identifies trends and gaps in current legal protections. Furthermore, it explores the socio-economic impacts of these rights, particularly in the entertainment industry, where deceased celebrities continue to generate substantial revenue. The research highlights the ethical and legal dilemmas posed by such commercialisation and its implications for cultural preservation, free speech, and the rights of heirs. This study seeks to advance the understanding of posthumous publicity rights and propose actionable recommendations aimed at harmonising privacy, commercial interests, and the public's right to information.[i]Moorman, A.M. (Ed.). (2020). Sport Law: A Managerial Approach (4th ed.). Routledge. https://doi.org/10.4324/9780429322365[ii] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), The U.S. Supreme Court ruled that the First Amendment does not protect the unauthorised broadcast of a performer's entire act, as this would violate the performer’s right of publicity, emphasising that economic incentives for performances should be preserved. [iii]Dietrich v. Lighthouse Musical Production Company Ltd.,BGH 1 ZR 49/97, Judgment of 1st December 1999, Translated by Raymond Youngs, Professor Basil Markesinis, "Essays on Foreign Law and Comparative Methodology," Hart Publishing 2001., In this case, Marlene Dietrich's daughter, as her heir and executrix, sought injunctive relief and compensation from the defendant for unauthorised commercial use of Dietrich's image, name, and signature, claiming an infringement of her posthumous personality rights. available at https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=726(last visited on September 30, 2024) [iv] AIR 2017 SC 4161