Can I Use a Photograph of Scarlett Johansson on the Cover of My E-Book?

Let's say I've written a memoir that I'm planning to self-publish. And let's say I've also decided that, on my book cover, it would be great to use a dazzling photograph of Scarlett Johansson that I've licensed from a stock photo service, such as Getty Images.  Alas, Ms. Johansson has no connection whatsoever to me or my book, but, hey, her picture on the cover certainly can't hurt my sales.

Can I -- and can you -- lawfully use a picture of an individual on a book cover without his or her permission?  It depends.

There are two separate legal considerations in publishing a photograph of a person, regardless of whether he or she is a celebrity.  

First, you must consider the rights of the photographer who ordinarily owns a copyright in the photographs that he takes.  Assuming that an image is not in the public domain, you will need the photographer's permission (or the permission of the photographer's authorized agent or of a stock photo service that controls the rights, etc.) to use the photograph for any purpose anywhere in your book.  By all means, don't simply copy and re-purpose a photograph from the Internet; that would almost surely be a copyright infringement.  (Of course, if you snap a photograph yourself you are, with some exceptions, presumably the copyright owner.)

But obtaining the necessary copyright clearance may not be enough.

Second, you must consider the rights of any identifiable persons depicted in the photographs. Those rights may, in turn, depend upon the context in which the photograph is to be used. 

A person's right to control the use of her own image (as well as certain other aspects of her persona, such as name and voice) is called the right of publicity.  There is no federal right-of-publicity statute in the United States, although some advocates favor such legislation. Instead, the right of publicity is governed by state law.  The law varies considerably from state to state, but two general principles apply.  First, the use of the image of a living person in advertising or for promotional purposes, without written permission, is unlawful almost everywhere in the United States.  So, obviously, SodaStream could not have aired this politically controversial commercial without Scarlett's written permission.  Second, consent from the subject of a photograph is not needed to use the picture in connection with genuine news and informational reports. For example, The Washington Post did not need Scarlett's permission to use her photograph in connection with this article concerning her appearance on the Colbert show.  Nor would her consent be needed to include her photograph in an informational work, such as an encyclopedia or this Wikipedia article about her. That said, there are countless uses that fall somewhere on the spectrum between a indisputably permissible editorial use and an indisputably impermissible advertising use.  To complicate matters further approximately 20 states hold that the right of publicity continues for some years after an individual's death, and is enforceable by the heirs of the deceased.

So what about putting Scarlet Johansson on my book cover?  Well, context is everything.  

First an easy case:  The courts have almost uniformly held that you can use a individual's picture, without his consent, on the cover of a book that is about him, e.g., on an unauthorized biography. (See, for example, this decision involving the Black Panther leader Bobby Seale.)  But my book is about me, not about Scarlett.

Another easy case: Singer-songwriter Tasleema Yasin successfully sued a publisher for using her photograph on the front cover of a novel entitled Baby Doll without her permission.  The court held that, because Ms. Yasin had no connection to the subject matter of the novel (indeed, her name wasn't even mentioned in it), the use of her photograph was “purely for marketing and trade purposes; solely as a means to attract customers and generate sales" and was therefore unlawful.  (See also Dorsey v. Black Pearl finding that R&B singer Marc Dorsey was likely to succeed on his claim that the unauthorized use of his photograph on the cover of novel was a violation of his right of publicity.)

But things can get tricky when the person depicted on a book cover has at least some tangential relation to the subject of the book.  For example, in Christianson v. Henry Holt, a waitress sued the publisher for the use of her photograph on the cover of the well-regarded book Nickel and Dimed by Barbara Ehrenreich, which dealt with the problems faced by the working poor.  The plaintiff had previously consented to to the use of her photograph in connection with a Fortune magazine article about "single mothers supporting their families on low-wage jobs," but she was not asked for permission to use her image on the book jacket published years later.  The publisher argued that the photograph had a reasonable connection to the book and therefore the right of publicity claim should be dismissed, but the court disagreed:

At no point is Plaintiff, her photo, or the restaurant where she appears ever part of the subject matter of the book. If Plaintiff or the restaurant where she appears had been mentioned even once in Nickle and Dimed then this Court might have doubts about this ruling. But this is not the case, and as a result, the book and the photo do not bear a reasonable relationship with each other.

Another court reached the opposite conclusion in a case with somewhat similar facts.  Dallesandro v. Henry Holt & Co., involved a book cover that depicted the plaintiff longshoreman in conversation with Father John Corridan, a priest who crusaded against corruption on the docks and was an inspiration for the film On the Waterfront. Even though Mr. Dallesandro wasn't mentioned in the text of the book, the court found that his picture was illustrative of a matter of genuine public interest, and therefore there was no violation of Mr. Dallesandro's right of publicity. The fact that the plaintiff was a longshoreman and had, in fact, spoken with Father Corridan was deemed sufficient to defeat the right of publicity claim.  However, it was a close call; one of the three judges dissented, arguing that the connection between the photograph of Mr. Dallesandro and the subject matter of the book was too remote to justify using his image.

Keeping these general principles in mind, it would be risky business for me to use Scarlett Johansson's photograph on the cover of my memoir,  I don't have her consent and my only connection to her is having purchased tickets to four of her movies over the years (which I enjoyed but didn't mention in my [hypothetical] memoir).  Similarly, if you are planning to use a photograph of a person, living or dead, on your book cover, without written permission, it is prudent to ask a lawyer whether your cover might get you into hot water.

When photographs of people appear inside your book, they are less likely to give rise to legal problems because such uses are less likely to be deemed uses for advertising or promotional purposes.  But, even then, there should be some "real relationship" between the pictures and the content of your book.  (See the Finger v. Omni  Magazine case which liberally interprets the "real relationship" test under New York law.)

If you obtain a photograph from a stock photo house to use on your book cover, keep in mind that the license agreements often cover only the copyrights in the photographs.  If you're using the image on a book cover, you should insist upon seeing a copy of any applicable right of publicity release and read it carefully to make sure it allows for your intended use. And keep in mind that, while some stock photo houses provide indemnifications to their customers, those assurances may be limited to the amount of the license fee, which is woefully inadequate to compensate you in the event of a legal claim.

Finally, be careful not to state or imply that a person depicted on your book cover endorses or approves of your work, if that isn't true.  Misleading use of someone's name or likeness implicates other areas of the law, such as false advertising.  See, for example, Rostropovich v. Koch Int’l Corp., 34 U.S.P.Q.2d 1609 (S.D.N.Y. 1995), in which cellist Mstislav Rostropovich claimed that the use of his likeness on CDs featuring his early performances would cause consumers to mistakenly believe he had endorsed the CDs.

The right of publicity has many nuances. Edward Rosenthal's good lawyerly discussion of the law can be found here. A less detailed summary from the Digital Media Law Project at Harvard can be found here.  Professor Jennifer Rothman's state-by-state "roadmap" can be found here.  Some, but by no means all, other countries recognize rights of publicity, also known as "personality rights"; see a Wikipedia listing here.

Cultivating a Healthy Loathing for "Work Made for Hire" Agreements

The "work made for hire" clause is the bete noire of freelance writers.  While the clause is frequently very unfair to authors, it is not unfair in all circumstances; it's never your friend, but there are times when it is not necessarily your enemy.  Following are twelve questions and answers that may help you to cultivate a healthy, not-unduly-paranoid loathing for "work made for hire" agreements.

But first, in digesting this somewhat geeky post, it is useful to know that, as explained here, any "original work of authorship" is subject to copyright protection the moment that it is "fixed in any tangible medium of expression."  For example, a love letter is instantaneously subject to copyright protection as it flows out beneath your fountain pen.  By way of further background, the U.S. Copyright Act uses the term "author" to refer to all types of creators: writers, composers, visual artists, choreographers, filmmakers, architects,  musicians, computer software programmers -- anyone who creates a copyrightable work.  (See Section 102 of the Copyright Act for a general list of the types of copyrightable works.)  The "work made for hire" doctrine addresses the question:  Who is the "author" of -- and the owner of the copyright in -- certain types of works at the moment when they come into existence?

1.  What is the essential difference between a "work made for hire" and the typical copyrightable work?  Ordinarily when you create a copyrightable work you are its "author" and, at least initially, the owner of the copyright.  (See Section 201(a) of the Copyright Act.) A "work made for hire" is a notorious exception to that default principle.  If a work qualifies as a "work made for hire," your employer (or the person or entity that commissioned you to create the work) is deemed the "author" and initial copyright owner, even if he/she/it contributed no copyrightable expression whatsoever to the work.  In other words, the employer (or commissioning party) owns all rights in the work; you own none -- ever (unless you enter into a contract in which your employer -- or the commissioning party -- bestows some rights upon you). No wonder that the American Society of Journalists and Authors has called work-made-for-hire agreements "all rights contracts on steroids."  (See the ASJA's excellent primer on all-rights agreements here.)

2.  What practical difference does it make whether you sign a "work made for hire" agreement or simply grant broad rights in your work to the commissioning party?  There are two major downsides to a "work made for hire" relationship.  First, as stated, you never have rights all in a work that you create on a "for hire" basis.  Everything embraced by the copyright belongs, at all times, to the commissioning party.  So, for example, if you were to create new works including characters or plot lines that appeared in the "work made for hire," you could be found to have infringed the commissioning party's copyright.  Of course, as discussed in this earlier post, an assignment of your entire copyright interest would put you in a similar "rightless" position.  This brings me to the second major downside: under the Copyright Act, a writer who assigns his copyright at least retains a right to terminate that assignment between the 35th and 40th year after it is made. By contrast, a "work made for hire" is forever.  Since you are not deemed to be the "author" of a "work made for hire," you or your heirs cannot exercise the termination right.

For example, in the Bob Marley case, the court found that five record albums recorded by the great reggae star between 1973 and 1977 were "works made for hire."  Marley therefore never owned the copyrights, which belonged instead to the "employer," Island Records, a subsidiary of Universal Music Group.  Consequently, Marley's family was unable to exercise the termination right to recapture ownership of the albums after 35 years and thereby negotiate a better financial deal for the rights going forward.  Of course, the great majority of works created in any medium have no commercial value by the time the recapture right kicks in.  However, if your work, like Bob Marley's, is one of the rare long-lived exceptions, the fact that you signed a "work made for hire" agreement instead of a simple grant of rights or even an outright copyright assignment could be crucial.  An "all rights contract on steroids" indeed.

3.  How paranoid should you be about "work made for hire" clauses in contracts for your freelance work?  Only reasonably paranoid.  For many types of mundane works, you may have no interest in ever creating derivative works or recapturing the copyrights in 35 years.  Freelance advertising copy.  Annual reports for corporations.  Beer making instructions.  Marketing brochures.  Press releases.  Technical writing.  I wrote all of those kinds of works in my days as a freelancer, before going to law school, and I have never regretted for a moment having no copyright interest in them.  On the other hand, I also published books, magazine articles, and op-ed pieces, and I would not have been pleased to sign "work made for hire" agreements for those works.  When, as a freelancer, you create a novel, a short story, a non-fiction book, a significant piece of journalism, a poem, a song, a play, a screenplay, or a variety of other works into which you pour something of your soul and which have at least some potential to be re-purposed (e.g., turning them into longer works, or re-using characters) it is entirely rational to be reluctant to sign a "work made for hire" agreement or, for that matter, any form of "all rights" agreement.  It's a complex personal, economic, and legal equation, which will vary from writer to writer and work to work.  There are some areas of writing, such as multi-authored textbook publishing, where "work made for hire" arrangements are commonplace.  There are other contexts in which a "work made for hire" contract is little more than a rights grab.  The various conventions of particular markets for writers are beyond the scope of this post, but are addressed in some of the online and printed references mentioned below.

4.  All right, then, when is a work a "work made for hire."  Under Section 101 of the U.S. Copyright Act, a “work-made-for-hire” can arise in only two circumstances: (1) when you, as an “employee,” create any type of copyrightable work within the scope of your employment, or (2) when you, as a non-employee, are specially ordered or commissioned to create one of nine designated types of works and you and the commissioning party agree in writing that the work will be a “work made for hire.” 

5. What are the tricky parts of the "employee" branch of the "work made for hire" doctrine?  The works you create for your employer within the scope of your employment are presumptively "works made for hire."  No written agreement is required.  For example, whatever I write for the law firm that employs me belongs to the firm, not to me.  If my firm is paying me for written work that I create on firm premises during regular business hours with firm computers, I don't find it objectionable that the firm owns all rights to it.  Controversies concerning employee-created "works made for hire" tend to arise in two areas.  First, there may be disputes as to who qualifies as an "employee," such that the copyright vests in the employer, rather than an independent contractor or freelancer.  That was the issue in the case of Community for Creative Non-Violence v. Reid in which the Supreme Court found that a sculptor was not an employee of the non-profit entity that retained him to create a sculpture.  Second, there may be disputes as to whether a work is created "within the scope" of the employee's job responsibilities.  If you work at The New Yorker as an editor during the day, your employer shouldn't own the short stories you are writing at home at night. While I am confident that The New Yorker does not make such an overreaching claim, other employers do sometimes include unfair anti-moonlighting clauses in their employment contracts or employee handbooks that purport to assert ownership over work created on the employees' own time.  (See this amusing blog discussing IP and moonlighting in practical terms.)  Anti-moonlighting rules may sometimes involve a "copyright assignment" issue rather than a "work made for hire" issue, but, either way, employees are too often disadvantaged by such clauses.

6.  In the non-employee/freelancer context, must there be a written agreement with the commissioning party in order for your work to be deemed a "work made for hire"?  Yes.  If you are not an employee of the person or entity that commissions your copyrightable work, then, in order for the work to qualify as a “work made for hire,” there must be a written agreement between the parties, signed by both of them. These days, an inked signature on a piece of paper may not necessarily be required.  But there must be something that qualifies as an “agreement” to which you personally affixed your name in some way. 

7.  Does a "work made for hire" agreement have to be made before you create your work?  Yes.  The parties must agree before the work is created that it will be a "work made for hire" belonging to the commissioning party.  Courts are divided on whether the parties can orally agree on a "work made for hire" arrangement beforehand, but wait until after the work is created to sign a written agreement.  Beware of efforts to recharacterize a work as a "work made for hire" after the fact.  Here is Ivan Hoffman's blog post on the regrettable practice of using after-the-fact check endorsements to memorialize the "work made for hire" status of a work.

8.  Does a "work made for hire" agreement have to include the magic words "work made for hire" for it to be effective?  Yes and no.  Ordinarily the agreement should use verbatim the magic words “work for hire" or “work made for hire” in order to give rise to a valid "work made for hire" relationship.  If it does not use those words, the agreement may be interpreted as giving rise to some other form of transfer of rights.  But be careful:  the courts have sometimes cut commissioning parties some slack in terms of the exact phrasing, as long as the intention is clear.  An agreement that speaks of the work as being “specially ordered or commissioned” or created “at the direction and expense” of another might conceivably sneak by.  (See the discussion "talismanic words" in this case.)

9.  Do all specially-commissioned, copyrightable works created by freelancers qualify as "works made for hire"?  No.  In an employer-employee relationship, any type of copyrightable work may be a "work made for hire."  By contrast, in a non-employee/freelance situation, only a copyrightable work that falls within one of nine categories specified in Section 101 of the Copyright Act can properly be deemed a "work made for hire," namely:

a work specially ordered or commissioned for use [1] as a contribution to a collective work, [2] as a part of a motion picture or other audiovisual work, [3] as a translation, [4] as a supplementary work, [5] as a compilation, [6] as an instructional text, [7] as a test, [8] as answer material for a test, or [9] as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

Not infrequently, through ignorance or subterfuge, a commissioning party will ask a freelancer to sign a "work made for hire agreement" for a type of work that can't be a "work made for hire."  For example, even if your contract for a novel says that it is a "work made for hire," it probably isn't. Similarly, in the Creative Nonviolence case above, a contract characterizing a sculpture as a "work made for hire" failed because a sculpture does not fall within one of the nine categories.  Usually, however, a sophisticated commissioning party will include a "belt an suspenders clause" that says, in essence, "if for any reason the work does not qualify as a 'work made for hire,' writer hereby assigns to the commissioning party all right, title, and interest in the work, including, but not limited to, all copyrights therein throughout the world." But, if there is only an assignment of copyright, rather than a "work made for hire" relationship, a writer would at least retain the right to terminate the transfer after 35 years (unlike the Bob Marley in the case discussed above).


10.  Are there other differences between a "work made for hire" and a conventional copyrighted work?  A few.  For example, unlike a traditionally authored work, for which the duration of copyright in the United States is the life of the author plus 70 years, a "work made for hire" enjoys a term of copyright that runs for 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter.  But the essence of the "work made for hire" doctrine turns on copyright ownership and the absence of a termination right.

11.  Are there any limits on what an employer or commissioning party can do with a "work made for hire"?  Not many. Such limits as there are come from areas of the law other than copyright.  Right of publicity law or unfair competition law may prevent the proprietor of the work from using your name without your written permission.  And you can, of course, enter into a contract with the proprietor that imposes upon him any terms you both agree upon, such as the duty to pay you royalties or to obtain your permission for certain uses.  But absent a contract or right of publicity violation, the proprietor has free rein to create derivative works, combine the work with others, translate it, abridge it, change it, exploit it in all media  -- the full scope of rights of a copyright owner.

12.  What should you do when you are asked to sign a "work made for hire" agreement in a context where you believe it is unfair?  Propose a license of less extensive rights as an alternative, which gives other party what he really needs, but not the many rights he really doesn't need.  If that doesn't work, bargain for more money for derivative uses.  Or ask that the commissioning party to assign the rights to you after a period of years. Of course, if you have little or no bargaining power, the commissioning party may tell you to take it or leave it.  I you have a literary agent, she can offer you advice on the commercial realities of your particular situation.  If you don't have an agent and if it is a commercially significant project, it may be prudent to seek the advice of a lawyer concerning the contract language and your legal options.  See this earlier post on 44 sources of free or low-cost legal help for writers.

There is a wealth of good advice on how to respond when presented with a "work made for hire" contract in the ASJA primer mentioned above.  The Writer's Legal Guide also offers pointers on negotiating strategy, including the reminder that, if you do sign a "work made for hire" agreement, you should obtain a written promise of any authorship attribution you are seeking.  The Writer's Legal Guide also sagely advises that you try to bargain for a promise that, if the commissioning party cancels the project for any reason, the copyright in the work will be assigned to you.

For general information of the "work made for hire doctrine," the place to start is Copyright Office Circular 9.  There is also a short, helpful discussion of "works made for hire" at the KeepYourCopyright.org site.  The Professional Artists League has posted a feisty article on "work made for hire" abuses; while it focuses on visual artists, writers confront many of the same abuses.  New York lawyer Lloyd Jassin has written a good article on drafting "work made for hire" agreements, written primarily from the point of view of a publisher seeking to acquire works on a "for hire" basis.

Finally, please note that this post is highly U.S.-centric.  The "work made for hire" doctrine exists in some form in many countries, but the rules vary significantly from jurisdiction to jurisdiction.

The Dead as Characters in Fiction: Shoeless Joe, J.D. Salinger, and J.R.R. Tolkien

On January 25 of this year, lawyers for the Estate of J.R.R. Tolkien sent a cease and desist letter to author Steve Hillard claiming that his novel Mirkwood violates the Estate's right of publicity in Tolkien's persona because (among other reasons) Hillard depicts Tolkien as a character in his book. The Estate cited Texas and Kentucky as examples of jurisdictions with statutes that extend the right of publicity to the dead.  Hillard responded by filing a preemptive lawsuit in federal court in Austin, Texas, seeking a declaration that his novel does not violate the Estate's rights.  Hillard's filing cites several good examples of recent novels by well-regarded writers that made prominent use of dead celebrities as characters, including Blonde by Joyce Carol Oates, featuring Marilyn Monroe as a character, The Hours by Michael Cunningham, featuring Virginia Woolf, and Underworld by Don DeLillo, featuring Frank Sinatra, Jackie Gleason, and J. Edgar Hoover, among others.  Early articles concerning the Mirkwood dispute appear here, here, and here.

I gather that the Estate may have other gripes about the allegedly "Tolkien-like" cover and the appearance of Tolkien's name in the subhead "A Novel About JRR Tolkien."  But it's not my purpose here to express a view on the merits of this particular lawsuit.  Instead, I'd like to voice my disaffection for the entire concept of a post-mortem right of publicity.

Briefly stated, the right of publicity prohibits the use of an individual's name or likeness (and, in some places, other elements of one's persona, such as one's voice, signature, etc.) in advertising or for "purposes of trade."  (RightofPublicity.com offers a good background discussion on the right; this good online whitepaper from the Kenyon & Kenyon law firm discusses the right in certain non-U.S. jurisdictions.)

There has been a lot of debate over the years about what falls within the ambit of "purposes of trade."  And there have been a fair number of lawsuits contending that "purposes of trade" include depicting an individual, without his consent (or the consent of his heirs), in a work of fiction, such as a novel or movie.  After all (the plaintiffs argue), the writer or producer is expecting to make money from the fictional work.  On the other hand, thankfully, many right of publicity statutes and court decisions explicitly recognize that there is a strong countervailing First Amendment interest in not curtailing all use of individuals' names in expressive works.

There has been a spate of recent right of publicity cases involving the use of real people in fictional works. (See this article from the American Bar Association summarizing recent developments.)  When brought on behalf of living individuals, most cases, like this one involving the television series CSI recently dismissed by an appeals court in California, tend to be yoked with a claim for libel, on the theory that not only does the plaintiff have a property right in his persona, but he has been falsely and disparagingly portrayed in the fictional work. (This raises the separate but related question of libel in fiction, which is the subject of this earlier post.)  However, when libel is not a factor, i.e., when the only claim is one based upon the right of publicity, in most cases -- but unfortunately not all -- the fiction writers have prevailed.  Still, there is no denying that this can be an unpredictable area of the law, as illustrated by the Tony Twist case.

But what about a right of publicity for the dead?  Remember, you can't libel the dead in the United States.  I, for one, see no compelling social benefit in bestowing a new property right on the heirs of dead celebrities, particularly when it is has too often been mischievously used by the living in an effort to suppress creative works, which are (and should be) entitled to robust protection under the First Amendment.  And yet approximately 19 states now recognize a post-mortem right of publicity.  (The laws, I might add, are entirely inconsistent with each other; some according protection for as few as 10 years after death, while Indiana and Oklahoma purport to extend protection for the astonishing term of 100 years!)

Back in the 1980s, I read the great baseball novel Shoeless Joe by W.P. Kinsella.  The title character is the ghost of Shoeless Joe Jackson, who was, of course, one of the greatest hitters of all time and the most famous member of the Chicago White Sox team (or the Black Sox, as they have come to be called) that fixed the 1919 World Series.  The book also features a central character by the name of J.D. Salinger.

If you haven't read the book, you may know the story from the 1989 movie Field of Dreams, which is closely based on Kinsella's novel.  When I saw the movie, I was immediately struck by the fact that J.D. Salinger had vanished from the story and had been replaced by a totally fictional character named Terrence Mann.  I had a work-related reason to learn more about the reason for this dramatic change in the dramatis personae.  So I called around and finally managed to locate W.P. Kinsella, who was living at the time in White Rock, British Columbia, writing more novels.  (I must say he was uncommonly cordial and gracious to a young lawyer calling him completely out of the blue.)  I asked him:  "What happened to J.D. Salinger?"  He told me that the lawyers had said that Salinger, who in 1989 was still very much alive, had to be cut out of the movie version of Shoeless Joe.  The lawyers were worried that Salinger (who had recently pursued a highly publicized lawsuit to block publication of an unauthorized biography that quoted from his unpublished letters) might try to block the release of the movie as a violation of his right of publicity.  The lawyers decided they couldn't take that chance.

(By the way, as far as I know, Salinger and his lawyers never threatened legal action in connection with Field of Dreams; the Hollywood lawyers simply feared he might.  I could be wrong about that.  If anyone knows for sure, please post a comment or send me a message.)

In 1989, New York State Legislature was considering a bill that would have extended the "right of publicity" to the dead.  If the law had passed, the heirs of dead celebrities could sue if their illustrious ancestors' names were used in advertising for "purposes of trade," just as living celebrities could sue under New York law -- then and now.  I was asked to participate in a panel discussion with one of the sponsors of the New York legislation.  And the reason I had tracked down W.P. Kinsella was to support one of the points I wanted to make:

Shoeless Joe Jackson died in 1961.  If New York enacts a statute recognizing a descendible right for publicity for up to a half century after death, I'm afraid that lawyers will be telling the W.P. Kinsellas of this world that not only do you have to cut J.D. Salinger out of Shoeless Joe, but you have to cut Shoeless Joe out of Shoeless Joe.

Well, New York didn't enact a post-mortem right of publicity statute in 1989.  But the legislators are still trying, and a similar bill was introduced for legislative consideration in 2010 and now has now been introduced again in 2011. At the same time, there is a movement afoot to enact a federal right of publicity statute that would include post-mortem  protection.

This is an active, controversial, and (by the low standard of lawyers) interesting area of the law, and my opinion as to the imprudence of a descendible right of publicity may be in the minority is, of course, just that -- one person's opinion.  The fact of the matter is that a post-mortem right of publicity is the law in many states.  Writers should be aware that (as long as they don't falsely imply that their works are authorized or endorsed by the heirs of a dead celebrity) they have a strong argument that the depiction of the dead in works of fiction is protected by the First Amendment. Again, think of Oates, DeLillo, Cunningham -- and Kinsella.  The statutes and the case law generally attempt to distinguish between conventionally commercial uses of a celebrity's name and likeness (such as use of images on tee-shirts) and more expressive, transformative uses (such as, one hopes, use in novels and films).  But the scope of the post-mortem right of publicity is none-too-clear, and celebrities' estates may be well-funded, aggressive, and lawyered-up. It's a grey area, and it may make sense to seek out legal advice before launching on a major project. Like Steve Hillard, you could conceivably end up with a fight on your hands.  If you do, it would be cheerful to have the support of an established publishing house.

Hilliard doesn't.  He self-published his novel.  About 900 copies had been sold prior to the filing of the lawsuit.

Postscript:  The right of publicity is not the only arrow in the quiver of those who would seek to prevent the use of real people, living or dead, as characters in fictional works.  Here, from lawyer Mark Litwak, is a good summary of the various legal theories that have been invoked, with greater or lesser success.  See also this summary from UK attorney David Crocker comparing UK and US law on the descendible right of publicity.  Finally, you might be interested in this account from The Hollywood Reporter of a federal judge recently holding the Washington State right of publicity statute unconstitutional in part.

Update:  Writer Diana Stevan's comment reminded me that I should have mentioned the lawsuit recently filed against Kathryn Stockett, author of The Help.  The plaintiff is a sixty year-old woman, who once worked as a maid for one of Stockett's relatives; she claims that she was used as the model for one of the principal characters in the book.  As is typical of such cases involving living plaintiffs, the complaint alleges a hodgepodge of legal theories, including violation of the right of publicity, false light invasion of privacy, and intentional infliction of emotional distress.  Here is an article by Laura Miller of Salon about the case. A copy of the complaint is here on the Jackson Jambalaya blog. And here is a good discussion Susan Cushman and lawyer John Mason on Jane Friedman's Writer's Digest blog.

See Diana's fine blog at http://www.dianastevan.com/.