I was recently posed the question from a visitor to the site regarding a deceased actor who portrayed a famous comic book character in a TV series drama, among other acting roles. My answer:
While I can’t give legal advice in this forum, I can certainly give you some input. The issues raised by this question have been the subject of cases such as the Lugosi case (Bela Lugosi as Dracula) and the Wendt case (Norm and Cliff from Cheers, who sued for the use of animatronic robots in a Cheers theme restaurant which played lines from the actual show). You’re right, any products concerning the actor in character as the comic book figure would require a license from the studio or owner of the character (i.e. Spiderman/Marvel). In that instance, it is possible that the studio will have contractually secured the rights from the actor to engage in certain licensing. If the product is based only on the actor himself or perhap some of his less famous portrayals, there would still be an issue with respect to his Right of Publicity if you want to engage in merchandising. Since he was married, all things being equal, his wife probably owns his Right of Publicity unless he transferred it to some other person or entity (like through a will, or during his lifetime). The Right of Publicity is a property right so this allows any variety of transfers to take place. As such, clearance or a license from whomever owns his RoP would be necessary.
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