A few thoughts on Forbes’ annual top-earning dead celebrities list

Departing from the usual Halloween release date, Forbes issued its annual top-earning deceased celebrities list on Friday, November 13th in 2020. A few takeaways, in no particular order:

1. Unsurprisingly, given the worldwide pandemic, almost all the reported numbers are down. Some may have more immunity than others, and those that went up, like Dr. Seuss were bolstered by television, movie and media deals. Some of that may be one-time bursts.
2. Elvis Presley was closing in on a 50% decline. Graceland, as a tourist destination, no doubt accounts for much of that given closures in 2020.
3. Prince is down yet again another year further from his death, as has been the trend. The summary on Prince mentions only music sales.
4. Those with the misfortune of making 2019’s list due to early departure, XXXTentacion and Nipsey Hussle, are gone.
5. Those with the misfortune of making 2020’s list due to early departure include Kobe Bryant and Juice WRLD. It will be interesting to see if Kobe Bryant is a one-time, one-year entrant or will make next year’s list as well.
6. Not-much-of-a-prediction: Eddie Van Halen will be on next 2021’s list. Though he passed away over a month prior to the release of the 2020 list, that is neither enough time to account increased sales, nor enough time to process his passing into a list that was no doubt already well underway in October.
7. The article includes a statement about its methodology, which includes sources I use when appropriate in valuations.

Last, a word about the often used term “delebrity” in relation to deceased celebrities. I get it, though it’s never really hit me as particularly clever or useful as a term. More importantly, no one I know who actually works with the heirs, family, and estates of notable deceased icons uses this term. It’s hard to take someone seriously who uses this term in their scholarship, publications, or writings. But keep using it, those who do, because it provides a revealing tell.

Here is a link to Forbes’ 2020 list: https://www.forbes.com/sites/maddieberg/2020/11/13/the-highest-paid-dead-celebrities-of-2020/?sh=37a974e03b4b&utm_source=Licensing+International+Database&utm_campaign=b3b89e5adb-EMAIL_CAMPAIGN_2019_12_18_01_57_COPY_01&utm_medium=email&utm_term=0_ec0e484a60-b3b89e5adb-397655773&mc_cid=b3b89e5adb&mc_eid=a31363c945

Hollywood Reporter’s “Hollywood Hologram Wars” quotes Faber of RightOfPublicity.com / Luminary Group

Nice to be quoted in Eriq Gardner’s new piece in The Hollywood Reporter entitled “Hollywood Hologram Wars: Vicious Legal Feud Behind Virtual Mariah, Marilyn and Mick.”  The article does a great job examining the business potential and burgeoning adoption of so-called hologram technology as well as corresponding growing pains and legal issues, particularly between those developing the technology itself.

In answer to Eriq’s question of “what’s the licensing and business potential for this technology?” I also said that it depends on:

a) what is being counted (fees to the estate, to the owners of the technology itself?); and

b) gross or net; and

c) how the market responds.

If the market responds well to an Elvis live show on a world tour, those gross earnings alone could be well on the way to the billion mark.  And if it follows with a Johnny Cash or Michael Jackson tour,  yes, it will reach billion dollar potential. And, will people be interested in seeing Michael Jackson “live” once, or over and over?

Here’s the link to Eriq Gardner’s The Hollywood Reporter article:

http://www.hollywoodreporter.com/thr-esq/hollywood-hologram-wars-vicious-legal-798401

Manatt article examines the Right of Publicity of Albert Einstein and Marilyn Monroe

The law firm of Manatt Phelps & Phillips has recently released an article comparing recent judicial rulings affecting the Right of Publicity of Albert Einstein and Marilyn Monroe.  Mark Lee, co-author of the article, has been involved in a number of landmark Right of Publicity cases over the years.

One takeaway from these similar cases with opposing results is that domicile should be part of comprehensive estate planning for those personalities with a potentially valuable Right of Publicity and the ability to move from one state to another.  Of course, the criteria for properly establishing domicile would have to be met, as merely owning property in a state does not render that state one’s domicile.

Remember:  a person can be a resident of multiple states or jurisdictions, but a domiciliary of only one.

I humbly suggest Indiana as a potential domicile for any such candidates.

Here is a link to the article:  http://www.lexology.com/library/detail.aspx?g=320642b1-2f3b-4362-ac31-9c1bfc144902&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+Federal+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2012-06-28&utm_term=

Variety interviews Jonathan Faber of RightOfPublicity.com & Luminary Group re: virtual celebrities

I had an engaging discussion with Ted Johnson of Variety Magazine regarding virtual celebrities earlier this week, and the opportunities and pitfalls presented by the technology that allows famous persons to be flawlessly recreated.  The opportunities and pitfalls are, in short, considerable.

Ted Johnson’s article appears in the latest edition of Variety as well as online.  You can check it out at this link: http://www.variety.com/article/VR1118055844

Marilyn Monroe Estate considering litigation against Digicon Media in response to “Virtual Marilyn”

Looks like my predictions in the May 9, 2012 edition of the Indiana Lawyer were prescient.  Specifically, in response to the debut of Tupac’s hologram, I went on record stating that this technology is likely to lead to both licensing and new business opportunities as well as litigation over unauthorized use of the technology by third parties with no relationship to the individual or entitlement to the underlying intellectual property rights.  Here’s a link to that Indiana Lawyer article:  http://www.theindianalawyer.com/-hologram–performance-by-tupac-creates-legal-questions-for-ip-lawyers/PARAMS/article/28758?page=1

Mr. Eriq Gardner of The Hollywood Reporter has posted an intriguing article on the exchanges between the lawyers for the Marilyn Monroe Estate and Authentic Brands, majority owner of the intellectual property rights to Marilyn Monroe, and Digicon Media, which claims to have “copyrighted” the virtual Marilyn.  I put “copyrighted” in quotes because that is a big, and dubious, assertion to make.  Digicon Media claims to have grand plans for the virtual Marilyn.

Here’s a link to the full article in The Hollywood Reporter, complete with actual copies of the correspondence between the parties:

http://www.hollywoodreporter.com/thr-esq/marilyn-monroe-estate-hologram-legal-334817

This article and the various documents embedded within the article provide a fascinating glimpse into the inner workings of representing and protecting the rights of a deceased individual.  This appears to be a transparent (pun intended) attempt to make a play for Marilyn Monroe in the virtual realm.  The Right of Publicity, as well as the various trademarks pertaining to Marilyn Monroe, should have no trouble reaching into that realm and ensuring that the attempt to “copyright” the hologram Marilyn would somehow give Digicon Media ownership over any aspects of Marilyn Monroe.

Plans for Steve Jobs action figure, biggest Right of Publicity story of 2012?

The biggest Right of Publicity story of 2012 so far has to be the news that a company called In Icons is preparing to issue a Steve Jobs action figure.  In response, Apple reportedly sent a cease and desist letter to In Icons, prompting Tandy Cheung of In Icons to state “Apple can do anything they like…I will not stop, we already started production.”

I hate to break it to them, but if an activity is prohibited by law, the fact that the offending company is already in production would provide no defense or entitlement to proceed.  This Steve Jobs action figure is exactly the kind of unauthorized commercial product that the Right of Publicity is designed to address, if not prevent.

Cheung reportedly stated “Steve Jobs is not an actor, he’s just a celebrity,” and that “[t]here is no copyright protection for a normal person.”   Aside from the various legal errors in that comment, I can’t help thinking that this line of thought is exactly what gets companies sued for Right of Publicity violations.

Here is a link to the MSNBC article containing Cheung’s quotes and reporting many more details on this story: http://technolog.msnbc.msn.com/_news/2012/01/05/9972437-apple-tries-to-ban-realistic-steve-jobs-action-figure

The MSNBC article states that Apple claims to own the post-mortem rights to Steve Jobs’ name, image and likeness, as manifest by the In Icons action figure.  I do not know whether or not Apple has affirmatively made that assertion or if that is an assumption being drawn from the fact that Apple issued the cease and desist letter.  All things being equal, I would have assumed that Steve Jobs’ family would be the beneficiary of Steve Jobs’ Right of Publicity.  Perhaps Apple does in fact have an ownership interest in Steve Jobs’ Right of Publicity.  The Right of Publicity is assignable during life or at death through testamentary documents or intestate succession.  The Right of Publicity is also divisible in whole or in part, meaning that several owners could own varying percentages of his Right of Publicity.  Alternatively, perhaps Apple is simply handling administrative duties such as protecting against unauthorized use of Steve Jobs’ Right of Publicity.  Presumably, Apple’s legal advisors and Steve Jobs’ family and heirs have already addressed this crucial point.

In researching this story, I also came across another write-up about the Steve Jobs action figure on Paidcontent.org entitled “Steve Jobs Doll Legal In Most States, Not Indiana” which can be accessed here:  http://paidcontent.org/article/419-steve-jobs-doll-legal-in-most-states-not-indiana/

This article seems to conclude that the Steve Jobs action figure is only actionable in those states with a statutory Right of Publicity in place.  The article ends by listing those states with a statutory Right of Publicity but does not include California, which is a fairly important jurisdiction for Right of Publicity matters.  California, in 2008, passed legislation confirming that the Right of Publicity does apply to those persons who died prior to passage of the statute.  Here’s a link to the amended language:  http://rightofpublicity.com/statutes/california-2008-amendment-to-33441

This amendment, signed into law by Governor Schwarzenegger, was in response to a California ruling that concluded that Marilyn Monroe was not entitled to statutory Right of Publicity protection under California law, because of the perceived location of, and law of, her domicile at the time that she died in 1956.  California’s 2008 bill was in fact just a clarification that the law indeed always was supposed to apply to those who predeceased passage of the statute.

Right of Publicity litigation usually involves application of the Single Publication Rule, which in general terms allows a claimant to address the totality of the infringement through one cause of action.  In the absence of such procedural efficiency, a claimant might be forced to go state by state, litigating the same basic nucleus of facts, against the same parties, over only those activities that took place in that particular state.  If courts are overburdened now, which they generally are, just imagine the inefficiency and backlog that such an approach would generate.

Thankfully, this is not how Right of Publicity litigation is typically conducted.

As for Steve Jobs and whomever is the appropriate party to assert a claim for violation of his Right of Publicity, I am confident that the law would back them up if they have to litigate in response to a Steve Jobs action figure.  If not, one would have to wonder why the Right of Publicity exists in the first place.