There's been a sudden and alarming push in the New York State Legislature to pass a bill that would create a posthumous "right of publicity" for anyone who died since Jan. 1, 1938.
The bills would give heirs the right to control the use of the "name, portrait, voice, signature or picture" of anyone who died within the last 70 years for "advertising purposes or for purposes of trade." The legislation provides for criminal penalties for unauthorized uses and gives heirs a right to sue for damages.
The two versions of the bill that have been introduced do not provide a clear exemption for literary works. Certainly a bill that would open up biographers and historians--and many fiction writers--to a new kind of liability shouldn't be undertaken without careful consideration.
Our sources in Albany tell us that the Assembly bill (A. 8836) could be voted on at any time by the full Assembly and that it would most likely pass. The Senate bill (S. 6005) seems to be on a slower track, although it is still possible that it will pop up before the legislature recesses tomorrow or when it is reconvened by the Governor in July.
We see no choice but to strongly and quickly oppose the legislation. The Authors Guild has already gone on record expressing its opposition. If you as Members want to register your opposition (and it would help the effort immensely we're told), please fax your letters or call the legislators listed below immediately:
Senate Majority Leader Joseph Bruno (phone: 518-455-3191; fax: 518-455-2448)
Senator Martin Golden (R-Brooklyn, Sponsor of Senate bill) (phone: 518-455-2730; fax: 518-426-6910)
Assembly Speaker Sheldon Silver (phone: 518-455-3791; fax: 518-455-5459)
Assemblywoman Helene Weinstein (D-Brooklyn,Sponsor of Assembly bill) (phone: 518-455-5462; fax 518-455-5752)
So, for example, the heirs of Frank Lloyd Wright could sue Nancy Horan for her new novel, Loving Frank; ditto the heirs of Winston Churchill et al. who are discussed and pictured in Lynne Olson's TROUBLESOME YOUNG MEN: The Rebels Who Brought Churchill to Power and Helped Save England. Or I could get into legal trouble for what I've written about my father. And forget about publishing a memoir about him, or illustrating it with photos (never mind that some have been in my possession since childhood).
Sure, dead celebrities shouldn't be resurrected to sell products. But there's a huge difference between Fred Astaire dancing in a dustbuster commercial and his dancing across the pages of a work of literature.
(June 21) Further thoughts:
What about Frank Langella portraying Richard Nixon in "Frost/Nixon"? Would he be sued, as well as playwright Peter Morgan? And what about all those Elvis impersonators, and drag queens doing Marlene Dietrich and Judy Garland, and Rich Little doing impressions of long-gone politicos and stars? (Hmm, maybe stopping Little isn't such a bad idea, judging from his performance at the White House Correspondents' dinner.) And what about those pretentious full-page ads in the NYT for the Sotheby's credit card featuring such art stars as Frida Kahlo and Andy Warhol?