Protecting Bob Marley’s
right to publicity in death
By Felicia Emmanuel
While he was alive, Bob Marley garnered fame as a reggae artist. His international acclaim had established him in the public eye as a public figure. By definition, a public figure is any individual who is in the public spotlight (Trager, 2014). As such, Marley controlled his marketing and maintained sole ownership of his intellectual property. When he passed in the early 1980s, his rights transferred over to his heirs. As the sole owners, his family inherited not only his musical rights but also his image. This, however, has not stopped marketing companies from trying to profit from the late artist’s face. Recently, the estate’s right to publicity was infringed upon by the marketing company A.V.E.L.A., which used Marley’s image on its products without securing permission. This move led to legal action against A.V.E.L.A., and the heirs won due to tort appropriation laws and the Lanham Act.
In order for Marley’s heirs to use his right to publicity, they had to inherit the coverage afforded by tort laws. Tort law is a “private or civil wrong for which a court can provide remedy in the form of damages” (Trager, 2014). Damages are monetary compensation rewarded for the loss of revenue due to one entity profiting from another’s image. There are four main privacy torts, but only one protects deceased individuals. That tort is appropriation. By definition, “appropriation is the act of using someone’s name, picture or voice without permission” (Trager, 2014).
The appropriation tort is divided further into two other branches called commercialization and the right to publicity, but the right to publicity relates to this case. It applies to celebrities who desire fame and have the right to benefit from their celebrity status, but another individual or entity is passing off without proper consent.
Celebrities accrue wealth through three means. They may conduct interviews or docudramas, sell merchandise, or enjoy using their status for marketing their brand (Madow, 1993). This ability ensures that prominent individuals have an opportunity to enjoy the fruits of their labor. However, the right to privacy and merchandising are privately held as intellectual property.
Although intellectual property encompasses copyright, trademark, and patent law, in the case of Bob Marley, it relates most with trademark. Trademarks are unique words, names, symbols or designs that set products apart. Because they too constitute as property, trademarks cannot be sold and leased to others. The right of publicity aims to do the same thing for celebrities by preventing the use of a celebrity’s name or likeness in advertising or promotion to falsely suggest that the person has endorsed the advertised product (Dogan, 2006). Cases involving trademarks are determined either by the likelihood of confusion or on the dilution ground (2006). The likelihood of confusion relates to the consumer’s ability to tell an authorized product from a fraudulent one. If consumers cannot do so, then the false advertiser is passing off the product as genuine. The dilution ground is an action in which one company’s good name is tarnished due to the affiliation created from another similar product.
In the situation involving A.V.E.L.A., Bob Marley’s family had given permission to another merchandising company named Fifty-Six Hope Road Music to use the late singer’s image on merchandise. However, A.V.E.L.A. seized opportunity to profit from Marley’s image and sold merchandise to major retailing stores. Because A.V.E.L.A. did not follow the proper channels, they passed off their product with consumers who were unaware the product being sold to them was not an authentic Marley item. Due to the confusion involved, the public figure’s chances of economic value are diminished (Madow, 1993). Whenever economic value is diminished, damages may be rewarded to make up for revenue loss.
The Lanham Act
Under the Lanham Act, trademarks and their names are protected. According to the Lanham Act, trademark infringement occurs when a mark “is likely to cause confusion, or to cause a mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person” (Trager, 2014). A case can be filed against an infringer if consumers unknowingly purchase a product that has not been given proper permission to be used. There are nine defenses for the trademark, but one may use fair use as a defense. Fair use allows for one product to describe another. However, fair use does not apply in this case. Marley’s heirs proved that confusion was involved with A.V.E.L.A. when they surveyed 509 people (Kreps, 2015). One shirt featured Bob Marley’s image while another featured a dreadlocked man. Of those surveyed, 37 percent affiliated A.V.E.L.A. to having the estate’s official license (2015). This evidence was the basis through which the Marley estate won.
In the past, there have been similar cases which advertisers infringed on the deceased’s right to publicity. The Martin Luther King Jr Centre for Change Inc. v. American Products Inc. was a case in which the plaintiff threatened to exercise their rights to publicity (Goldson, 1996).
According to the U.S. Court of Appeals the ruling was as follows:
“…if the right of publicity dies with the celebrity, the economic value of the right of publicity during life would be diminished because the celebrity’s untimely death would seriously impair, if not destroy, the value of the right of continued commercial use.” (1996)
In this case, jurors ruled that the deceased owners of the right to publicity did not have to exploit their right commercially during their lifetime in order for the protection to extend into death.
Another prominent musician whose right to publicity was defended in death was Elvis Presley. In the State of Tennessee, Ex. Rel The Elvis Presley International Memorial Foundation et al v. Gentry Growell case, the court determined the right to publicity was treated as intangible property in life and should be treated that way in death. Second, “one may not reap where another has sown nor gather where another has strewn” (1996). This proverb simply means it is unfair competition for one person to benefit off of another person’s hard work.
Third, a celebrity’s right to publicity creates valuable capital asset for the celebrity’s heirs to benefit from. As mentioned before, it is treated similarly to intellectual property and it can be transferred to the family estate (1996). The court made another equally important decision if the celebrity is allowed to enter the public domain, their value is greatly diminished. This in turn affects the economic value the family would be able to profit from.
In today’s society, the Marley case against A.V.E.L.A. reinforced the need for courts to honor the deceased’s right to publicity, whether or not the figure took advantage of their right during his or her career. The laws not only helped to protect Marley’s creative works and other contributions, but the law also protected the very image Marley used to build his brand. Applying tort law extensions allowed for the Marley estate to acquire damages for harm done due to the loss of economic value by advertisers and other infringers passing off Marley’s image as their own. On the other hand, the Lanham Act worked jointly with appropriation tort law to preserve the legacy built from the deceased celebrity’s right to publicity. This in turn, solidifies Marley’s face in the minds of the public for generations to come.
This work by Felicia Emmanuel is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
Dogan, S.L., Lemley, M.A.(2006). What the right of publicity can learn from trademark law. Stanford Law Review. 58(4). pp. 1161–1220. Retrieved from http://www.jstor.org/stable/40040289
Goldson, P., Hylton, B.S., (1996). The new tort of appropriation of personality: Protecting Bob Marley’s face. The Cambridge Law Journal, 55(1), pp. 56–64. Retrieved from http://www.jstor.org.uvi.idm.oclc.org/stable/pdf/4508169.pdf?acceptTC=true
Kreps, D., (2015, February 21). Bob Marley’s estate wins appeal over unauthorized image use. Rolling Stone. Retrieved from http://www.rollingstone.com/music/news/bob-marleys-estate-wins-appeal-over-unauthorized-image-use-20150221
Madow, M. (1993). Private ownership of public image: Popular culture and publicity rights. California Law Review. 81(1). pp.125,127–140. Retrieved from http://www.jstor.org/stable/3480785
Trager, R., Russomanno, J., Ross, S. D., & Reynolds, A. (2014). The law of journalism and mass communication. CQ Press: Thousand Oaks, CA.