Dead persons in a film production have a 'right of publicity'

Dead persons in a film production (through their representatives/heirs) have a "right of publicity": a lawyer explains.

Dave Stern: Whether someone is alive or deceased, they do have a right of publicity, which means that they are (or should be) in control of the way their personality, their image, their likeness is displayed and exploited.

So, if a production (a third party) wishes to obtain these rights, the same would apply for if the person is alive or deceased. If they are deceased, I’d recommend the production to reach out to the estate of the deceased because their estate would have obtained the rights of publicity from the deceased on the date of passing.

So, if they want to reference and exploit an individual’s likeness, personality, image (even though they have passed), they would need to obtain those rights from the estate directly.

There is the component of public domain, which is a term that is not often understood and it varies by country. In Canada now, public domain is any individual, company or event would be free to basically use/reference/exploit as needed, provided the owner of that work has passed plus 75 years after the date of passing has also elapsed.

So, after that period of time, something is public domain: if someone were to reference (positively or negatively) an historical character, you would be able to do that because it’s safely in the public domain. Someone who has recently passed however, you would need to obtain the necessary rights from their estate.

Dave Stern is an entertainment lawyer and partner at Blaney McMurtry LLP

Are you a producer in Canada or the US? Get a quote for producer’s E&O insurance here.

Related:

• The Delicate Art of Making a Bio Pic without Getting Permission
• Marvin Gaye vs. Robin Thicke and Pharrel Williams (Blurred Lines)
• E&O Insurance for Film and TV: The Value of a Clearance Lawyer
• Clearance procedures – E&O
• YouTube: Errors and omissions insurance (E&O) – Dave Stern

About: Based in the heart of Toronto’s financial district, Blaney McMurtry LLP is one of Canada's premier law firms. https://www.blaney.com/

About: Front Row Insurance Brokers Inc. is an independent insurance broker that specializes in the entertainment industry – specifically, the film industry. Front Row works hard to provide insurance protection for a very low cost. Should a claim occur, Front Row works diligently with clients and insurers to expedite the payment.

Disclaimer: Informational statements regarding insurance coverage are for general description purposes only. These statements do not amend, modify or supplement any insurance policy. Consult the actual policy or your broker for details regarding terms, conditions, coverage, exclusions, products, services and programs which may be available to you. Your eligibility for particular products and services is subject to the final determination of underwriting qualifications and acceptance by the insurance underwriting company providing such products or services. This website does not make any representations that coverage does or does not exist for any particular claim or loss, or type of claim or loss, under any policy. Whether coverage exists or does not exist for any particular claim or loss under any policy depends on the facts and circumstances involved in the claim or loss and all applicable policy wording.