Buddy Holly and the City of Lubbock
With the 50th anniversary of Buddy Holly’s untimely passing right around the corner, there has been a considerable amount of activity and interest in Buddy Holly. A recent article in the Lubbock Avalanche-Journal (see http://www.lubbockonline.com/stories/010909/loc_375424907.shtml ) reports on the progress that is being made to re-introduce a variety of initiatives commemorating Buddy in his hometown of Lubbock, Texas. There’s a bit of history between the City and Buddy’s widow, Maria Elena Holly, but it appears likely that things are getting resolved and a fitting tribute will be possible. Part of that history has to do with considerable misunderstanding of Right of Publicity and related intellectual property laws concerning deceased celebrities. No home town has a blanket right to engage in commercial uses of a notable individual just because he or she was born there. The law is quite clear in terms of ownership of these intellectual property rights, and I suspect the same scrutiny and criticism (of the past) would not have been levied against, say, Priscilla Presley, although her approach likely would have been quite similar. In any event, it looks like a bridge is being built between all the parties, and that is probably a good thing for everyone.
http://www.rightofpublicity.com
You have a very informational website. I haven’t considered the celebrity aspect of licensing; your writing is easy to understand, thanks!
Buddy Holly was and still is, one of the few musicians that has made such a huge impression in rock and roll: my question is wouldn’t, somehow, that our world needs to acknowledge his contribution? More importantly, could his surviving family license his work and history worldwide?
How about common copyright?
You have succeeded in engaging my brain, now I’d like to discuss this!
~ Catherine
Thanks for the comment! Glad you find the site useful. I agree, Buddy’s contributions are almost immeasurable and his influence reaches far and wide. In many ways, the Right of Publicity is just the thing to recognize his contributions, by ensuring that his heirs or beneficiaries are able to administer ongoing uses, projects, events, and commemorative merchandise and products in a way that is consistent with his legacy and values. In this way, the Right of Publicity is not so much about compensation for those uses, but ensuring that those who own the rights can exhibit some degree of control as to what is appropriate. Of course, with any musician, the record label or publisher often will have some control with respect to the music, so there is a balancing and collaboration that often takes place between these various interests.
I’m not sure why the article indicates that there’s ambiguity about whether Holly’s right of publicity expires on the 50th Anniversary of his death. The Texas Statute (Texas Property Code, Section 26.012(d)) clearly states: “A person may use a deceased individual’s name, voice, signature, photograph, or likeness in any manner after the 50th anniversary of the date of the individual’s death.” Of course, promoting an anniversary concert before the 50th anniversary of his death would be a problem.
Lubbock would also seem to have a sovereign immunity argument to any right of publicity claim.
Good points, Keith, and thanks for the comment. The answer is that the Texas statute is not the only part of the equation. There are common law publicity rights, Federal trademarks, and common law trademarks that apply. Also, the activities and use that takes place likely will include websites, merchandise distribution and such which will implicate entirely new sets of statutes. Sovereign immunity would not apply because even divisions of the government can be liable for intellectual property infringements. Last, there is something to be said for the blessing and involvement of the heirs which is often important to fans and the public, and helps make the event and activities more marketable and gives a chance to be just a bit closer to the personality being honored.
All true about potential trademark issues, as well as potential right of publicity issues in other states if there was advertising across state lines. My point on sovereign immunity was only with respect to a Texas right of publicity claim. At least a couple of cases applying Texas law, Chavez v. Arte Publico Press, 59 F.3d 539, and Jiminez v. Conley Magazine (unpublished, W.D. Tex. Dec. 14, 2006), have held that government actors have a sovereign immunity defense to a right of publicity claim under Texas law.
I don’t think deceased individuals would have a common law right of publicity in Texas in light of the statute, but I could be wrong about that.