Pushing Up Daisies and Dollars: On Posthumous Rights and Ownership

“Everything dies;” few things are as unoriginal as that universal sentiment. Nevertheless, death endures. Mortality continues to be one of the more potent subjects in art and entertainment and it insists on haunting the living.

The Rise of the Suing Dead — sort of…

As if invoking the wrath of litigious ghosts, lawsuits may miraculously arise even after someone passes away, though ghosts do not have the power to sue. In fact, ghosts have few, cognizable legal rights.[1] Imagining legal rights originating from the power to exercise choice may be helpful.[2] There are legal mechanisms to memorialize the choices of the dead. Wills, for example, help to orchestrate the transfer of property; the dead – while living – can choose who gets their property. Occasionally, the dead may even attach conditions to receipt of their property.[3] The definitions of “property” vary depending on the state, but some commonalities exist. California defines property as anything that can be possessed or owned to the exclusion of others.[4] [5] It is not uncommon to see music, art, or movies treated as property – this is due, in part, to copyright.

The Copyrighting on the Walls

The law recognizes copyright as an exclusive form of ownership governing largely, though not entirely, creative works.[6] An example is in order: Isaac Hayes Jr. was a prominent singer-songwriter famous for composing the iconic 1966 hit-song Hold On, I’m Coming.[7] After copyrighting the song on two occasions,[8] Hayes passed away in 2008, leaving behind an estate containing the rights to his musical legacy.[9] The Trump campaign performed the song without permission on multiple occasions, and the Hayes estate filed suit – alleging Trump’s unauthorized use violated their copyright.[10]

Isaac Hayes Jr. passed more than a decade ago;[11] obviously, he is not the proponent of this lawsuit. Rather, the estate of Isaac Hayes Jr. is filing suit.[12] An estate technically describes property subject to some type of transfer but is often used colloquially (and interchangeably) with the recipients of the property.[13] Here, Hayes left his estate (a mass of property containing his copyrighted song) to his company, overseen by his son, Isaac Hayes III.[14] To complicate things further, “estate” – while usually used in conjunction with death – can describe the property of the living as well.[15] Estates are valuable tools, but the term is rather muddy; the living, the deceased, and their property remain too entangled to be dismembered by one word.

Jurassic Perk — Trusts in the Process

Trusts are another useful tool for affecting the transfer of property. While there are legal distinctions between ‘trusts’ and ‘estates,’ their nuances have little bearing on the following example. The most important distinction between the two resembles an administrative component; trusts involve a third party to serve as a guardian for the mass of property.[16]

Michael Crichton was an acclaimed writer and actor, known for projects like Jurassic Park, Westworld, and ER.[17] Crichton inherently owned the rights to the works he created, and these rights were eventually packed up into a trust entitled Roadrunner LLC upon his passing.[18] Among other property, the trust contained a contract between Crichton and Warner Bros.[19] The contract concerned the copyright for Crichton’s screenplay – Emergency Ward.[20] Crichton’s trust, managed by living individuals, is now enforcing the contract to protect the copyright.[21]

While the property transfer can prove somewhat complicated, it serves as an excellent introduction to the rights of the deceased. Hopefully, it has become slightly clearer: the dead do not necessarily have rights; instead, they merely owned property at one time.[22] The fact that the dead owned or, in some cases, created the property in question becomes relevant in subsequent lawsuits.[23] [24] Most property ownership rights terminate when someone passes.[25]

Sci-Fi meets Zombies — AI and the Rights of the Dead

Even if the dead lose their ownership rights, it seems unfair when deceased celebrities generate millions in revenue every year.[26] Coincidentally, a small minority of jurisdictions recognize a right that survives death: the right to publicity.[27]

The right of publicity has become increasingly polarizing and publicized after the advent of Artificial Intelligence. Drake – the mononymous recording artist – was recently embroiled in a related legal skirmish.[28] Drake released a song – Taylor Made – which featured the AI-generated voice of hip-hop legend Tupac Shakur.[29] California recognizes the value of celebrity – a special type of property right which protects iconic aspects of an individual’s persona.[30] So, Drake’s unauthorized use of Tupac Shakur’s voice violated a type of property right.[31]

Drake is not the first offender of this nature and likely not the last. Marilyn Monroe has been the subject of similar disputes.[32] Prince, too, the genre bending musical genius, propelled the legislative consciousness forward after his death.[33] For example, Minnesota raced to pass the “Personal Rights in Names Can Endure (PRINCE) Act” following Prince’s death, preserving a posthumous legal right to publicity.[34] [35] Because no federal laws recognize this legal right, states have assumed the responsibility of policing publicity rights.[36] Geographically, most states extend the publicity right to the limits of their borders; others extend the right to any “deceased individual,” anywhere, with varying degrees of success.[37]

Putting an End to ‘Last Days on Earth’

The body of law recognizing posthumous property rights is quickly growing. A right once recognized only by a small handful of states is now recognized by more than twenty.[38] As most critics have observed, this new right poses interesting new constitutional problems.[39] [40]

Complications always arise while navigating uncharted territories, but recognizing posthumous property rights may be a step in the right direction. Artificial intelligence poses novel problems in the modern era, and rapid technological advancement makes the imminence of those problems seem all too near. [41] The exclusive property rights of today may wind up serving the interests of ordinary people tomorrow, especially in the wake of internet-wrought turmoil. After all, the internet has a habit of preserving everything; the recent adage that nothing truly goes away may have new meaning in coming years.

[1] Kirsten Rabe Smolensky, Rights of the Dead, Arizona Legal Studies Discussion Paper No. 06-27, 6 (2009) http://dx.doi.org/10.2139/ssrn.924499.

[2] Id. at 4-5.

[3] Id. at 25.

[4] Cal. Civ. Code § 654 (West).

[5] See, e.g., Cal. Prob. Code § 62 (defining property as the ownership of real or personal property and the associated rights)

[6] 17 U.S.C.A. § 106 (West)

[7] Kate Brumback, Trump Campaign must stop using ‘Hold On, I’m Coming’ after lawsuit from family of song’s co-writer, Associated Press News (Sep. 3, 2024, 1:20 PM), https://apnews.com/article/trump-isaac-hayes-hold-on-im-coming-lawsuit-731701376f1da39e11bfc6fd35e3aab8.

[8] Isaac Hayes Enters., LLC v. Trump, No. 1:24-CV-3639-TWT, 2024 U.S. Dist. LEXIS 163188, at *2 (N.D.Ga. Sept. 11, 2024)

[9] Brumback, supra note 7.

[10] Id.

[11] Id.

[12] See, Isaac Hayes Enters., 2024 U.S. Dist. LEXIS 163188, at *6.

[13] See, e.g., Cal. Prob. Code § 353

[14] See, Isaac Hayes Enters., 2024 U.S. Dist. LEXIS 163188, at *6.

[15] See Cal. Prob. Code § 353

[16] John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L.J. 625, 627 (1995) (positing the general contractarian nature of trusts, outlining a third party’s fiduciary duty to the beneficiaries of the trust)

[17] Kaitlyn Huamani, ‘ER’ creator Michael Crichton’s estate sues Warner Bros. over upcoming hospital drama ‘The Pitt’, Associated Press News (Aug. 27, 2024, 5:36 PM), https://apnews.com/article/michael-crichton-lawsuit-er-pitt-614a7eec8513b01e5b4fdc00da79e42a.

[18] Complaint, Roadrunner JMTC LLC v. Warner Bros., No. 24STCV21825, (Super. Ct. Aug. 27, 2024). https://deadline.com/wp-content/uploads/2024/08/crichton-comformed-complaint-aug-27.pdf.

[19] Huamani, supra note 17.

[20] Complaint at 11, Roadrunner JMTC LLC v. Warner Bros., No. 24STCV21825, (Super. Ct. Aug. 27, 2024).

[21] Id.

[22] Smolensky, supra note 1.

[23] See, e.g., Isaac Hayes Enters., 2024 U.S. Dist. LEXIS 163188.

[24]See, e.g., Complaint, Roadrunner JMTC LLC v. Warner Bros., No. 24STCV21825, (Super. Ct. Aug. 27, 2024).

[25] Anita L. Allen & Jennifer E. Rothman, Postmortem Privacy, 123 Mich. L. Rev., at 13 (forthcoming 2024) (U of Penn Law School, Public Law Research Paper No. 24-23) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4834871 (“[A]ction personalis moritur cum persona (“a personal action dies with the person”), distinguish[ing] between causes of action rooted in a person which are not survivable, and those rooted in property, which survive death.”)

[26] Erik W. Kahn & Pou-I “Bonnie” Lee, “Delebs” and Postmortem Right of Publicity, Landslide, Feb. 2016, at 10.

[27] Christian B. Ronald, Burdens of the Dead: Postmortem Right of Publicity Statutes and the Dormant Commerce Clause, 42 Colum. J.L. & Arts 123, 127 (2018)

[28] Bill Donahue, Tupac Shakur’s Estate Threatens to Sue Drake Over Diss Track Featuring AI-Generated Tupac Voice, Billboard Pro (Apr. 24, 2024), https://www.billboard.com/pro/tupac-shakur-estate-drake-diss-track-ai-generated-voice/

[29] Donahue, supra note 28.  

[30] Cal. Civ. Code § 3344.1 (West)

[31] See generally id.

[32] Greg Rosalsky, It was a classic rap beef. Then Drake revived Tupac with AI and Congress got involved, National Public Radio (May 14, 2024, 12:10 PM), https://www.npr.org/sections/money/2024/05/14/1250578295/it-was-a-classic-rap-beef-then-drake-revived-tupac-with-ai-and-congress-got-invo; See, e.g., Milton H. Greene Archives, Inc v. Marilyn Monroe LLC, 692 F.3d 983 (2012) (highlighting conflict of laws between New York and California while probating Marilyn Monroe’s will in contemplation of her posthumous right to publicity)

[33] Ronald, supra note 27, at 124-125.

[34] Id.

[35] See also H.B. 3994, 89th Gen. Assemb., Reg. Sess. (Minn. 2015)

[36] Kahn & Lee, supra note 26, at 10-11.

[37] Id.

[38] Id.

[39] See generally Ronald, supra note 26 (Arguing state-created publicity rights may violate the Constitution’s commerce clause which disallows interference with interstate commerce)

[40] Kahn & Lee, supra note 35, at 13 (Implicating the First Amendment’s protection of established freedoms, i.e., freedom of speech and freedom of press)

[41] See Minn. Stat. § 617.262 (West) (criminalizing the nonconsensual dissemination of “deep fake” obscenities)