Protecting the Living Dead
There are many stars who left the stage far too soon, among them John Lennon, Aaliyah, Whitney Houston, and Kurt Cobain. In the aftermath of these tragic deaths, fans are often hungry to connect with the best of their idol’s legacy, and to ponder the reasons for their demise. Audiences want to see movies, read books, and hear music dedicated to, inspired by, and centered on these lost stars. But who should be allowed to create such works? Who should have a say in how the deceased performer is represented? Should the departed individual’s family or management be allowed to pull the plug on a production?
Court of Public Opinion
Before works honoring deceased performers ever make it to production or publication, they are often weighed in the court of public opinion. Fans want to know if the family was involved, how big the producer’s name is, who was cast in the starring role, and how many of the performer’s works will make it into the new production.
The initial reaction to these choices can often determine if the project continues as planned, is reworked to the wishes of family and fans, or is scrapped altogether. For example, Lifetime’s biopic of R&B singer Aaliyah Haughton, known simply as Aaliyah, was doomed from the beginning after the late singer’s family expressed disgust that a big movie studio was not spearheading the project. Without the approval of Aaliyah’s family, Disney actress Zendaya Coleman was cast to play the lead role. As news spread of the casting decision, and later of the Haughton family’s refusal to grant music rights, members of the public took to Twitter and other social media sites to voice their disapproval. The backlash was so intense that Coleman decided to back out of the project. Ironically, the public disapprobation caused viewers to tune in—if for no other reason than to see just how bad the movie was—and Nielsen ended up ranking Aaliyah: The R&B Princess number one in Twitter TV ratings.
Twitter commentary echoed the thoughts of the Haughton family. Fans complained that Aaliyah was too big for Lifetime, and that her legacy could not be done justice by a made-for-TV-production on a network with a poor track record of biopics—Lifetime’s films on the lives of Anna Nicole Smith and Brittany Murphy were called “a sad mess” and “trashy,” respectively. There were three fatal flaws in all these films. First, they failed to acquire the blessing of the deceased’s estate or family. Second, they opted for low-budget casting and costuming. Finally, they chose not to employ a well-known writer who would have lent the script some credibility. All of these errors lead viewers to ask themselves, “Why couldn’t they have done better?” Or, perhaps more importantly, “Why couldn’t they have been stopped?”
Court of Law
Legally, there isn’t much that can be done to stop an “unauthorized” biopic or posthumous album from coming to market. Novelists, filmmakers, and songwriters have free reign to discuss or depict famous people in whatever way they wish—so long as their works are truthful, or as close an approximation of the truth as to not be noticeably untruthful, and do not invade the subject’s privacy (a factor that is hard to prove when the subject is no longer with us). This is why the family members often take to the media to voice their displeasure—they have no real power to “authorize” any work about their famous loved one.
The two legal claims that may be brought by disgruntled family members are that there is invasion of privacy because the work misappropriates the artist’s likeness, and that it is a violation of their right of publicity. The first claim is not available to famous people or their representatives because the courts in many states have ruled that famous people have, by virtue of their fame, no privacy interest in their likeness or image. The second claim is related to the right of a person to make money from the commercial use of his name or likeness. This second claim would logically seem to be available to people like the Haughtons, but, sadly, this is not the case. Rather, this claim can only be asserted when a commercial entity has falsely claimed that the celebrity at issue has endorsed a product. This is why claiming a work is “unauthorized” really doesn’t add much to any legal challenge.
On the topic of privacy, it is important to mention that one simply cannot invade the privacy of a dead person. Most courts have held that the deceased have no privacy to be invaded, and so claims of a violation cannot be brought in a court of law. Generally, a plaintiff claiming a violation of the use of his likeness must prove three things: (1) that there was a use of a protected attribute; (2) that the use was exploitative—usually, this means that the use was for the purpose making money; (3) that there was no consent. The hardest thing for the families and management of deceased celebrities to do is to prove that a “protected attribute” exists.
The family of slain Florida teen Trayvon Martin, however, were successful in their attempt to stop the unauthorized use of the youth’s image—Trayvon’s infamous, haunting “hoodie” picture—because they argued that the picture, a selfie snapped by the boy with his own camera, was property of their son, an unwilling celebrity, which had passed to the family posthumously. As such, they asserted that their property deserved protection and that others could not use their son’s image on t-shirts, artwork, or any other commercial (exploitative) uses without their consent. The family sent out hundreds of cease and desist letters and donated the money from the uses they licensed to a charity established in their son’s name.
What can be done?
The best thing for families of deceased celebrities to do is present their feelings about the unauthorized production to the public. If the family feels the portrayal is offensive, belittling, or insulting, it should say so in no uncertain terms to anyone that will listen. This move is likely to induce some fans, possibly even a critical mass, to speak out against the project. It also may convince the big names who wanted to work on the project to decide to leave. No celebrity wants backlash or controversy to surround their projects, which is part of the reason why so many biopics end up starring C or D-list actors with no skill or credentials. America has a consumer-based culture, and many people do not understand why they should not be allowed to buy a t-shirt or music track, or watch a movie that depicts someone they admire. An emotional plea by an affected family member is often enough to persuade the general public to consider another viewpoint.
Next, those opposing the use should get in touch with a lawyer. As explained above, an argument will need to be made as to what attribute(s) are worthy of protection. This is not possible in every case, but a good lawyer, familiar with intellectual property and trademark rights, will be able to pull out pertinent facts to make a case for stopping the project.
By Daniella Peterson
Sources
Bacle, Ariana. “Twitter Was Not Happy with Lifetime’s Aaliyah Biopic.” Entertainment Weekly. N.p., 16 Nov. 2014. Web. 22 Nov. 2014.
Grow, Kory. “Where Lifetime Went Wrong With the Aaliyah Movie (and What It Could Learn Going Forward).” Vulture. N.p., 8 Jan. 2014. Web. 24 Nov. 2014.
Liptak, Adam. “When It May Not Pay to Be Famous.” The New York Times. The New York Times, 01 June 2013. Web. 24 Nov. 2014.
O’Neal, Sean. “Everything about Lifetime’s Brittany Murphy Movie Is Already Trashy and Awful.” · Newswire · The A.V. Club. N.p., 3 Sept. 2014. Web. 22 Nov. 2014.
“Using the Name or Likeness of Another.” Digital Media Law. Berkman Center for Internet & Society, n.d. Web. 24 Nov. 2014.
Weber, Lindsey. “Where Lifetime Went Wrong With the Aaliyah Movie (and What It Could Learn Going Forward).” Vulture. N.p., 17 Nov. 2014. Web. 24 Nov. 2014.
