As unpleasant as this topic is, it certainly raises some interesting right of publicity questions. One visitor to this site posed a question concerning the tragic case of Caylee Anthony, the mechanics of the Florida statute, and some recent dolls being made of Caylee Anthony. My response:
I recently was involved in the effort to seize OJ Simpson’s right of publicity in satisfaction of judgment to the Goldmans, and the subsequent effort to block and repackage OJ’s confessional book by Harper Collins, “If I Did It.” So the prospect of the right of publicity getting mixed in with criminal actions, seizure of property and asset claims is nothing new. In relation to the Caylee Anthony situation, Florida law is the most likely publicity statute to apply. All things being equal, the Florida statute would appear to give Caylee’s heirs a basis to stop commercial uses of her right of publicity. But what happens if the parent of the child whose publicity rights are in question murdered the child? (Note: this is not meant to render an opinion on the guilt or innocence of Caylee’s mother.) Sometimes the wording of a statute gets very mechanical, like in Florida’s statute where it provides that a decedent’s heirs can constitute a class composed of a spouse or children of the deceased. For a deceased child, normally I would expect the parents of the child would have the standing to assert such a publicity claim. If the parent murdered the child, I have to assume a court would be able to construct an alternative basis for administration of the child’s right of publicity rather than putting it in the hands of the child’s murderer. In such instances, it would probably be determined by the laws of intestacy in that state. But for that to happen, someone would have to step forward (like the other parent, sibling, aunt or uncle) and pursue the appropriate action to effectuate the change sought, since it might not occur to the court that there is an intellectual property issue in the midst of the criminal aspects of the situation. There also are “Son of Sam” statutes in most states that prevent a violent criminal from profitting from his or her crime, such as selling life story rights or authoring a book based on the violent crime (even though there is often a market for such things). So that addresses the question of who might control Caylee’s publicity rights.
With respect to the dolls and the exemptions you referenced, I am confident that nothing in the Florida right of publicity statute would allow such dolls.
There are various exemptions to this statute, primarily for media or First Amendment purposes. Dolls, all things being equal, will typically constitute the kind of commercial use that is exactly the sort these right of publicity laws are designed to prevent.
Last, the “1998” reference in the heading of the text of the statute is simply to the last version of the text of statutue that I had available. That doesn’t mean the statute was not effective after 1998.