Observations on Forbes’ 2024 list of top-earning dead celebrities

Forbes’ annual list of top-earning deceased celebrities always presents an interesting gathering of the dearly departed. It can be especially interesting to compare the newest list to those of prior years. For example, this year, Michael Jackson comes in at $600,000,000, whereas last year, Jackson topped the list at $115,000,000. The various Michael Jackson-themed stage productions reportedly contribute significantly to Jackson’s earnings.

Also apparent in reviewing the 2024 list is the role that licensing of the Right of Publicity has played in contributing to the reported figures. Arnold Palmer’s licensed iced tea and lemonade by Arizona, and the alcoholic version by Molson Coors, shows just how profitable a personality-branded beverage line can be: $14,000,000 in 2024. Whitney Houston’s $13,000,000 is aided by a licensed slot machines.

Though a frequent citing on prior lists, J.R.R. Tolkien is not on the 2024 list, but fellow authors Charles Schulz and Dr. Seuss continue as perennials. Inevitably, when a surprise death occurs, that person often will appear on the list for at least a year. Paul Walker, Nipsey Hustle, Tom Petty, and Juice WRLD all made the list for a year or even two after passing, but have not been seen since. This unfortunate distinction goes to Matthew Perry in 2024. The circumstances of his passing may add a bit of sustained attention to his premature passing, and his memoir also provides a contribution to his reported $18,000,000.

One-time sales of catalogs or assets can also either rocket the numbers upward, or put a person on the list for one year such as 2023’s Ray Manzarek. This year, it seems likely Ric Ocasek will be in this category with a reported $45,000,000 sale of his interest in his music catalog to Primary Wave.

Forbes’ methodology includes looking at sales and streaming figures, licensing, acquisitions or sales, or any other sources between the period of October of the prior year through September of the current year. Forbes also reportedly utilizes data from Luminate, and considers input from those in the industries.

Here’s a link to the 2024 list: Forbes 2024 Top-Earning Deceased Celebrities

USPTO Roundtable on Right of Publicity, NIL, and Artificial Intelligence

A USPTO roundtable will take place on August 5, 2024 on the topic of Right of Publicity and Artificial Intelligence. USPTO AI Right of Publicity roundtable link The program is called Protecting NIL, Persona, and Reputation in the Age of Artificial Intelligence and will be livestreamed at this link: livestream link for USPTO AI Right of Publicity roundtable

With credit to the USPTO link above, the queries posed for the roundtable consist of:
1. How does the use of unauthorized NIL content harm individuals? Does AI technology exacerbate the creation and use of unauthorized NIL content and harm to individuals? If so, how?
2. How can AI be used as a legitimate and constructive tool in circumstances where individuals grant permission to a third party to use their NIL?
3. Do technological mechanisms or protocols currently exist to identify AI-generated NIL content, to prevent or deter unauthorized AI-generated NIL content, or to remove unauthorized AI-generated NIL content after it has been released? What other types of mechanisms or protocols exist, or should exist, to identify AI-generated NIL content or address unauthorized NIL content?
4. Currently, NIL is primarily protected via state law. In addition, some Federal statutes also address certain misuses of NIL. For example, the Lanham Act includes a provision—15 U.S.C. 1125(a)—that can be used to bring a Federal cause of action in certain circumstances involving NIL misuse. Are current legal protections for NIL rights sufficient? Why or why not?
5. There have been calls for a new Federal law to address unauthorized use of NIL content, including content generated by AI. Should Congress create a new Federal law to protect NIL? If so:
(a) Should current state NIL laws, such as state right of publicity laws, be preempted if a new Federal NIL law is enacted?
(b) What key elements should be incorporated in a new Federal NIL law?
(c) Should any new Federal NIL law protect against all unauthorized replicas of an individual’s NIL or focus on unauthorized AI-generated replicas?
(d) Some state laws addressing NIL protect only well-known individuals. Likewise, many Federal circuit courts require a showing, among other elements, that a plaintiff is famous or recognizable by the public in order to succeed on a claim under 15 U.S.C. 1125(a). Should this requirement of fame or recognizability be included in a new Federal law protecting NIL rights? Why or why not?
(e) Should a new Federal law prohibit non-commercial uses of unauthorized NIL content, such as political deep fakes and revenge pornography?
(f) What types of enforcement mechanisms should be included in any new Federal NIL law?
(g) What elements should be included in a new Federal NIL law to help ensure it does not become obsolete due to rapid changes in AI technology?
(h) Section 230 of the Communications Decency Act states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230 also expressly provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” Should any new Federal NIL law be considered an “intellectual property law” for purposes of Section 230 of the Communications Decency Act?
(i) How should Congress address First Amendment considerations in any new Federal NIL law?
(j) Should any new Federal NIL law be incorporated into the Lanham Act?
6. What limits, if any, should be placed on the voluntary transfer of rights concerning NIL to a third party? For example, should there be limits on the duration of such transfers?
7. Questions 1-6 above relate to individuals’ NIL. How should these questions be answered in the context of individuals’ and creators’ reputations?

Hopefully, this roundtable will be a balanced and fair exploration of these topics. The Right of Publicity often lacks a unified voice of support because it is inherently a person-to-person proposition; in contrast, it is opposed by industries, unions, and lobbying arms, or individuals who sometimes seem quite separate from the perspective that only comes from actually working with affected parties.

Regarding point five, the prospect of any Federal Right of Publicity statute must not lose the ground gained over the last 120 years. My hope is that the USPTO’s August 5 roundtable presents a balanced discussion on this critical topic.

Apparently, a transcript and recording of the event will be available after the livestream at this link: Transcript for USPTO AI Right of Publicity Roundtable

ELVIS Act amends Tennessee Right of Publicity law with AI provisions

Tennessee’s Right of Publicity statute has been amended to provide broader provisions against artificial intelligence. Specifically, the amendment fortifies the concept of voice and the vulnerabilities AI could take advantage of if left unchecked.

Here is a link to the amendment: Tennessee ELVIS Act amendment

And here is a link to the Recording Academy’s announcement:
Recording Academy ELVIS Act announcement

The Right of Publicity and NO FAKES bill

A recently introduced bipartisan Senate bill aims to hold AI and deepfake creators liable for unauthorized use of a person’s likeness. It sounds like a good idea, though Right of Publicity statutes already accomplish this objective. Perhaps a bill specifically addressing these particularly-concerning, technology-based uses could serve a purpose, but it should be considered, and drafted, with existing Right of Publicity statutes in mind. Here’s a link to one article of many covering the bill: NO FAKES bill

New York State Assembly Bill A560C

New York’s legislature may be closing in on passing a Right of Publicity statute with New York State Assembly Bill A5605C.  If so, it would be a significant development in the Right of Publicity realm as New York has been conspicuously behind other states for a very long time.  As of July 20, 2020, the bill was “amended on third reading” (here’s a link to the timeline and status of the bill which also has link to the PDF of the bill itself):  https://www.nysenate.gov/legislation/bills/2019/A5605

Overall, my take is that this bill would be a step in the right direction, even as it would still amount to New York having one of more narrow or limited Right of Publicity statutes in the United States.  For example, a forty year post-mortem provision is quite anemic, and creating a registry system sounds good on paper but in my experience is not particularly helpful yet introduces various problems.  Video games are not on the list of exempted works, as they should not be, and also to its credit, the bill has meaningful provisions in relation to Deepfakes and the problems such technology present in the modern world.

The progress of this bill seems already to have traveled further than past efforts.  Hopefully, tired refrains like “this bill exists only to enrich a few wealthy estates” are worn-out by now and find no traction.  Does copyright and trademark exist only to enrich a few wealthy creators or companies?  Observations of past legislative efforts in New York are addressed in the following link I made on the topic:  https://rightofpublicity.com/observations-about-new-yorks-assembly-bill-a-8155b

Student-athlete legislation & the NCAA’s Board of Governors adopting name, image and likeness policies

Yesterday, the NCAA’s Board of Governors voted unanimously in favor of allowing student athletes to earn money from their name, image, and likeness.  NCAA Board of Governors Name Image Likeness

The NCAA’s announcement spoke of modernizing, and the Board issued guidelines and created a Working Group to respond to legislative developments concerning the issue.  In other words, there is much yet to come.  After opposing California’s bill, perhaps the NCAA felt forced to change its stance, and to be fair, it is a complicated issue.

A few observations, in no particular order:

1.  As usual, the legal term for the interests being dealt with–the right of publicity–is rarely if ever used in reporting on the issues.  It would help if its proper name was used, but since trademark and copyright issues are often referred to as “patents,” perhaps it is par for the course.

2.  These developments really only put NCAA athletes on the same footing as other college students.  A music major can perform and earn money.  An art major can sell works and earn money. Having said that, unlike those examples, student athletes perform their craft entirely in the NCAA environment.  They are on the school’s field, in the school’s stadium, wearing the school’s uniform bearing its valuable trademark, with a team, coaching staff, and opponent, all of which cost money not paid by the student athlete.  The music or art major generally covers costs and handles logistics in performing or creating a work that leads to income.  Still, the point has merit.

3.  A subsidized education is valuable, and the majority of NCAA athletes will need an education for life after competitive sports.  The NCAA system also provides a forum in which athletes develop and get recognized, and therefore reach the professional level.  The amateur environment can hardly be said to have failed every student athlete up to this point.

4.  Those affected by these developments constitute a very small percentage of NCAA athletes.  Few NCAA athletes move on to professional sports.  Of those who do, an even smaller percentage last more than a few years at the professional level.  An even small number will earn significant money from their name, image, and likeness (correction:  their right of publicity) outside of contractual compensation from the professional sports team.

5.  I have seen at least some state that these developments put athletes in danger or that the right of publicity must be “fixed.”  Suggesting that these developments will put student athletes in danger of entering into agreements that diminish their rights later on is a commentary on the nature of contracts.  Pending legislation seems to be seen as an opportunity to attack established right of publicity architecture such as transferability, postmortem right of publicity, and the duration of recognition of the right of publicity.   None of these issues are, or should be, part of the recent student-athlete legislation.

6.  To the extent that these developments create the possibility of students being used commercially in relation to a team, such scenarios could implicate various intellectual property rights.  Commercial use of footage of an athlete performing in an NCAA competition, or the school’s name and logo, may implicate rights that exist in parallel to the right of publicity.  This observation explains why weight loss ads with Dan Marino or watch ads with Eli Manning depicted them with a generic football, but no Dolphins or Giants trademarks.

Time will tell.

Ninth Circuit ruling in Hendrix case: Washington Right of Publicity is constitutional

Yesterday brought an important decision from the Ninth Circuit concerning the constitutionality of Washington’s Right of Publicity statute.  Overruling the lower district court’s determinations to the contrary, the Ninth Circuit has determined that Washington’s Right of Publicity statute is indeed constitutional as applied to the facts of the Hendrix case.

Here is a link to the ruling:  2014 Hendrix Ninth Circuit WA RoP constitutional

North Carolina Bar Journal article on Right of Publicity legislation

I’m often asked to give guidance and input on draft Right of Publicity legislation, but earlier this year I was asked to comment on a recent legislative effort that did not become law.  Specifically, I looked at the 2009 draft legislation in front of North Carolina’s General Assembly, and I commented on specific provisions that characterized the draft legislation.  Here is a link to the article:

http://sportsandentertainmentlaw.ncbar.org/media/29402520/seljune2013.pdf