February 09, 2012 12:09am PT by Eriq Gardner
Indiana Moves to Grant Broad New Legal Rights to Dead Celebrities
Which celebrities are buried in the state of Indiana?
This is a trick question. Most deceased public figures are not technically buried there. They only enjoy phenomenal legal rights in the state.
Indiana allows celebrities or their estates to protect -- regardless of where they were born -- name, voice, signature, photograph, image, likeness, distinctive appearance, gestures or mannerisms.
But this still isn't enough, so the state with the nation's strongest personality rights is on the verge of passing a new amendment.
Indiana's right of publicity law was signed into effect in 1994. That year, state lawmakers were lobbied by CMG Worldwide, a local firm that manages intellectual property for many dead stars including Marilyn Monroe, James Dean and John Belushi. (Here's the full client list.)
The law allowed individuals 100 years of personality rights protection after their death, but here's the "problem": Can the law be retroactively applied to anyone who died before 1994?
Last June, an Indiana federal judge said, "No."
In that case, the estate of early 20th century bank robber John Dillinger sued video game publisher Electronic Arts for using "Dillinger" to describe weapons in The Godfather video games.
EA moved to dismiss the lawsuit on two grounds. One was a successful argument that the claims usurped the First Amendment. The other was that Indiana's personality rights statute wasn't available to any celebrity who died before 1994.
In considering the motion, Judge Jane Magnus-Stinson reviewed past case law, especially a decision a few years prior that held that Monroe's estate couldn't sue inside the state because she couldn't leave in her will a property right to her publicity. She was dead, after all, for more than three decades by the time Indiana adopted its law. (More on what later happened in the Monroe case here.) If the law was applied retroactively, the judge wrote, "heirs of the millions of people who died between 1894 and 1994…would greatly expand the potential liabilities that the statute creates.”
That's not a problem, however, for those millions of people -- or better stated, for the few who were lucky enough to get famous in their lifetimes and now have estates and intellectual property managers.
And so, Indiana is now considering amending its law to explicitly confer personality rights "whether the personality died before, on, or after July 1, 1994."
The bill has already passed the Indiana House 85-7. It's now going before the Indiana Senate, and if it passes, it will go before Indiana Governor Mitch Daniels for his signature.
And what would be the effect? Will all the jurisdictional limitations be a thing of the past?
Jonathan Faber is founder of the Luminary Group, another IP management firm in Indiana that represents deceased celebrities including Vince Lombardi, Babe Ruth and Jesse Owens. He helped initiate the new changes and defends it as merely seeking to confirm the original intention of the 1994 law and avoid confusion by the judiciary down the line. Faber says he believes that if the ruling in the Monroe case was "based on the premise that the rights didn’t exist at the time of Monroe’s death, then the premise is wrong."
"This law is sometimes known as the 'James Dean' law," he adds. "It defies logic that the Indiana law, passed to protect the rights and interests of the likes of James Dean, Ryan White, or many others, would somehow fail to protect James Dean or Ryan White simply because they died before the statute was enacted."