Privacy or Property? Arizona Court Adopts Post-Mortem Right of Publicity In Intra-Family Online Dispute

The right of publicity, i.e., the right not to have others appropriate your name or image for commercial purposes, is an odd duck.  It was described by Professor Prosser in 1960, and later in the Restatement of Torts, as of one of four species of common law privacy rights intended to remedy the emotional injury to one’s “seclusion” caused by breaches of privacy. By contrast, the Third Restatement of Unfair Competition in 1995, in describing the right, jettisoned privacy law’s concern with emotional harm, and focused on the commercial value of one’s identity as a property right, in part by analogy to trademark law.

Does this arcane historical distinction still matter? Yes, especially if the rights being enforced are those of a deceased person. Privacy rights do not survive death, property rights do. Some states have passed statutes clarifying whether there is a post-mortem right of publicity.  But for those states that have not, the question of whether the right of publicity survives death often depends in large part on whether it is seen as a privacy right or a property right.

“I Want to Die Like Dog”

This issue reached the Court of Appeals of Arizona in Reynolds v. Reynolds. In 2010, Robin Reynolds authored an article for Phoenix Woman online magazine entitled I Want to Die Like a Dog: Poignant Insights on Aging Gracefully. The article concerned Robin’s efforts to care for her aging mother. Another article, posted after her mother’s death, included a picture of the decedent with Robin.  Robin’s siblings, who were administering their mother’s estate, attempted to have the articles removed on the grounds that they violated their mother’s “right of publicity.”  During the probate proceedings, the issue was presented to the Superior Court, which dismissed the claim on the grounds that there was no post-mortem right of publicity in Arizona.

Post-Mortem Right of Publicity Recognized

On appeal, the Court of Appeals of Arizona first had to determine whether Arizona recognized any right of publicity at all, the issue apparently not having been previously decided.  Because the Restatements endorsed the existence of this right, and there was no Arizona law to the contrary, the Court held that an individual in Arizona has a “right of publicity that protects his or her name and/or likeness from appropriation for commercial or trade purposes.”

Next, the Court had to determine whether this right survived death. Arizona law explicitly provides that the right of privacy does not survive death.  However, the Court recognized that the right of publicity has evolved from its original conception to something “more akin to a property right, the breach of which is measured by resulting pecuniary loss, [rather] than a personal right whose violation results in emotional injury.”  Therefore, the Court held that the right of publicity survived death, that it was descendible as a property right, and that the mother’s estate could assert a right of publicity claim.

An Unauthorized Biography

Nevertheless, the Court affirmed dismissal of the estate’s right of publicity claim against Robin.  Although Robin was compensated for at least one of her articles, they were “expressive works” that did not use her mother’s name or likeness for purposes of trade.  Rather, the Court found that they were “on the order of an unauthorized biography, which plainly may not give rise to a claim for violation of the right of publicity.”

No word yet on whether the estate will seek further review in the Arizona Supreme Court.

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