NYTimes article, The New Grave Robbers, details increasing attempts to expand yet another type of IP right, the obscure “identity right” associated with the “right of publicity.” As the article observes:
CAN a wild wig and a bushy mustache be packaged and called an Albert Einstein costume? According to Hebrew University of Jerusalem and its American marketing agent, the answer is no — at least not without permission. The university says that when it inherited Einstein’s estate, the bequest included ownership of Einstein’s very identity, giving it exclusive legal control over who could use Einstein’s name and image, and at what cost.
Einstein is not the only example. While we might think of people like the Rev. Dr. Martin Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of our cultural heritage, available for all to use, the identities of each of them, and thousands more, are claimed as private property, usable only with permission and for a fee.
This phenomenon is fairly recent — and it’s getting out of control.
In the US, the right of publicity even lasts past the subject’s death, in some states. And it’s increasingly used to censor speech–“say you wanted to write a play about a chance meeting between these two historic figures. Could you? While the play itself may be protected by the First Amendment, that doesn’t mean that the companies that manage Parks and Einstein might not attempt to assert control.” (For more examples, and discussion, see Types of Intellectual Property; Recent IP Horror Stories and Outrages: Tolkien, Greens, Photographers; The Rise Of A New Intellectual Property Category, Ripe For Trolling: Publicity Rights.)