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Just in time for Halloween, Forbes.com releases 2009 Top-Earning Dead Celebrities list

October 31, 2009 No Comments »
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The new 2009 Forbes list of “Top Earning Dead Celebrities” has just been released.  A Halloween tradition, this year’s list brings a few surprises along with some, but not all, of the usual suspects. 

 

Of note are the significant numbers these personalities pulled in, with the first spot occupied by Yves Saint Lauren at a reported $350 million.  A few years ago, $50 million would have guaranteed the top spot.  This year, that amount would barely earn a spot in the top 5, with J.R.R. Tolkien holding the number five slot at a reported $50 million.

 

On closer examination, most of the larger-than-usual numbers are driven by one-time events.  The Yves Saint Laurent entry was primarily a result of an auction of an art collection he owned with his partner.  The runner-up, Richard Rodgers and Oscar Hammerstein, claim a reported $235 million as a result of a $200 million acquisition of the rights to Rodgers’ and Hammerstein’s creations by a Dutch pension fund.  Michael Jackson pulls in at number three, with a reported $90 million stemming from earnings from a merchandise deal, the Sony film This Is It, and the significant increase in sales and airplay of his music catalog following his death.  Elvis is the first perennial entry, claiming $55 million for the number four spot on the list.  Tolkien’s $50 million, enough to pull in a top five entry, was the result of a settlement between the HarperCollins and New Line Cinema over a dispute over unpaid royalties.

 

In each of these cases, the circumstances will not repeat and many of these names will drop off.  That said, I expect that Michael Jackson will be even higher on the list next year.  J.R.R. Tolkien will no doubt reemerge after the release of the Lord of the Rings prequel, The Hobbit, in 2011. 

 

Through it all, Elvis and Albert Einstein remain perennial entries, with John Lennon and Jimi Hendrix also proving to be safe bets.  Three out of four of those are musicians, in part because the value of an iconic music catalog can serve as an almost inexhaustible asset with no pre-determined cap on potential earnings.  I’ll leave it to you to figure out the past perennials who have dropped off the list, although at least a few of the comments on the Forbes website for this story have picked up on these absences.   

 

The complete Forbes 2009 list can be accessed at:

 

http://www.forbes.com/2009/10/27/top-earning-dead-celebrities-list-dead-celebs-09-entertainment_land.html

 

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DirectTV’s Farley Flap

October 30, 2009 No Comments »
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Deceased comedian and Saturday Night Live alum Chris Farley is at the center of a controversy concerning the use of a Farley clip in a DirecTV advertisement.  The advertisement involves a clip from the movie “Tommy Boy” in which Farley and co-star David Spade appear in a skit dubbed “fat guy in a little coat.”  Critics allege the ad is in poor taste.

The ad deviates from being simply a movie clip when new footage of Spade involves his pitch for DirecTV.  “Great, I’m here with tons of fun, but I could be at home with DirecTV” Spade says.

The decision to proceed with the spot was made with the consent of not only Spade, who did not even want to attend Farley’s funeral apparently for emotional reasons relating to being in the same room with his deceased friend in “a box,” but also from Farley’s family.  Spade issued a statement that “…we talked and thought it would be a cool way to remind people just how funny Chris was.”  DirecTV executives have stated that the decision to proceed should be up to the family. 

From a legal perspective, that would be the correct answer.  In my experience, fans of beloved, departed personalities can be quite critical of decisions by the heirs of that personality.  But the right of publicity exists in no small part to ensure that, at the very least, those decisions can be made by the heirs and not the public at large.  Right or wrong, I suspect that is the best system available.

I am reminded of a television ad for GMC trucks, involving a still image of Rosa Parks along with many other personalities and images, such as Martin Luther King Jr., a former President, Neil Armstrong, as well as iconic images from U.S. history.  This ad ran shortly after I had helped secure Rosa Parks as a client for my company at the time.  Shortly thereafter, an op-ed ran in the New York Times stating that it was inappropriate for Rosa Parks to be hawking trucks.  

The decision to license the still image of Rosa Parks was carefully considered by those charged with that responsibility.  Ultimately, permission was granted because the use was deemed tasteful, not derogatory to Rosa’s legacy, and a meaningful source of needed-funding for The Raymond and Rosa Parks Institute for Self-Development.

The New York Times writer did not point his pen at the estate of Martin Luther King, Jr., or any of the other notables who were used in precisely the same manner as Rosa Parks.  I bet that the Rosa Parks Institute might have considered foregoing the ad if that NY Times writer would have offered to open his check book and make a donation for the same amount of proceeds that the license fee generated for Rosa’s charitable organization. 

I’d say that begins to put things in perspective. 

Here is a link to the Farley story:  http://www.cnn.com/2009/SHOWBIZ/TV/10/27/farley.directtv.commercial/index.html 

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Do I need a license to use Michael Jackson’s image and song titles in relation to products?

October 19, 2009 2 Comments »
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Recently, I was asked the following (edited) question through the http://www.rightofpublicity.com query forum:   “I would like to use Michael Jackson’s image as well as (possibly) some of his song titles in conjunction with a line of specialty products.  Do I need a license from Jackson’s estate?

My answer: Yes, a product like you describe would require a license from Jackson’s estate.  Use of Jackson’s image implicates his right of publicity, which is a right that typically survives the death of an individual.  Also, if you intend to make use of his music, album covers or song titles, then a license may also be required from the music publisher of that particular song or album.  In these instances, it is advisable to proceed only after covering all the bases with respect to the intellectual property rights that are potentially implicated via a product line like you are contemplating.

 

 

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FTC Proposed Regulations Concerning Celebrity Endorsements

October 16, 2009 1 Comment »
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The FTC is considering new regulations concerning celebrity endorsements and testimonials.  As some may be aware, the FTC has previously taken a position concerning the authenticity of certain celebrity endorsements and testimonials, so these developments are not entirely uncharted territory.  It is interesting to consider how these regulations could be intepreted with respect to deceased personalities.  One might conclude that if a personality is deceased, how can they endorse much of anything?  In fact, the matter is not that simple and there are certain dynamics in place which can function in a same or similar capacity as an endorsement from a living person.  The extent of the endorsement may also be part of the analysis, such as when an infomercial heavily integrates a given personality, and the strong indication is that the personality uses and recommends the product. 

This is more directed at living celebs and infomercials, but it has some potential applicability in both casting and celeb brand licensing and doesn’t appear to distinguish b/t living or dead celebs.  It might be something you need to consider drafting specific clauses in the license to address, particularly regarding liability of celebrities for false claims.  While no distinction is made between living and deceased personalities, the following are specifically identified:

1.  Celebrity endorsers may be liable for statements about a product which are false or do not represent the celebrity’s own views 
2.  Advertisers should disclose the relationship when the celebrity is pitching a product or service on a talk show or other medium when the it is not obvious that the celebrity is being paid to make that plug.
3.  Advertisers should only use endorsements of celebrities if the advertiser believes that a celebrity subscribes to the views presented.

More information is accessible at the following link:

http://www.lexology.com/library/detail.aspx?g=7c4079f9-330d-4bfc-8b2f-5032ef23a494&utm_source=Lexology%20Daily%20Newsfeed&utm_medium=Email&utm_campaign=Amec%20subscriber%20daily%20feed&utm_content=Lexology%20Daily%20Newsfeed%202009-10-16&utm_term=


Does a Rock Band-Themed Restaurant Need Permission From the Band?

October 12, 2009 No Comments »
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Recently, I was posed the following (edited) question through the http://www.rightofpublicity.com question section:  I am interested in opening a restaurant with a theme dedicated to a famous rock band.  I have a memorabilia collection that I would like to display as part of the establishment, play the band’s music around the clock, and sell food items with the band members names or song titles.  I’ve seen other busiensses like this.  Do I need to do in order to get permission to do this?
My answer:  Yes, a license would have to be secured from the band in order to carry out the plans you describe.   Aside from the fact that this use implicates various intellectual property rights of the band and its music catalog, it is also worth noting that more and more musicians and bands are getting into the restaurant and food-related business.  I would expect, then, that an ever-higher degree of attention is being paid to these kinds of endeavors.   In any event, if a use of this kind proceeded without a license, a lawsuit would likely ensue (pun intended).   Further, use of music in an establishment must also be paid for, typically through ASCAP and/or BMI licenses.  Those fees are usually fairly manageable, as evidenced by the many restaurants which employ music as part of the establishment.  Of course, those entities also have enforcement mechanisms in place and restaurants and similar businesses can and do get caught and fined for use of music that is not reported and paid for properly.  If the theme of the restaurant is dedicated to one act, then perhaps a special arrangement for use of the music could be secured while negotiating all of the other aspects of the license from the band.  But proceed carefully and be sure to get the permission you need in place well before getting too far along in the planning, financing or other aspects of launching such a business. 

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