(This was written just  before a couple of new responses came in; if it
seems a semi-amalgamated reply, that's the reason.) Alex's link to the
metrocorpcounsel.com site offers great background info  on the
publicity/persona rights issue.   Here it is again:

_http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=September
&artYear=2008&EntryNo=4209_
(http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=September&artYear=2008&EntryNo=4209)

It closes with the  following:

Clearly, a name of a  celebrity can be used as a trademark. Elvis
Presley,Marilyn Monroe and John  Lennon are all names protected by U.S.
trademarks. The real question  that now arises is to what extent a "persona"
and/or a "likeness" can be treated  as a trademark. As stated above, in the
Tiger Woods case the Court did not  allow a claim to protect Tiger Woods'
image as a trademark. However, the  reasoning of that case and others seem
to indicate that while not every likeness of a celebrity can  function as a
trademark-if
in fact a likeness and persona are in use for  certain classes of goods or
services - trademark protection will  follow.Commercialization of celebrity
personas only recently has invaded our  daily lives, and the effect of this
invasion has been pervasive, both culturally and legally. As such the
protection surrounding such personas has continued to  grow amorphously.

The exact contours of protection continue to be redefined, and  the nature
of  the property itself continues to expand in certain directions  while
contracting in others. However, as this commercialization continues to
grow, the clear trend is that the property rights associated with these
personas will continue expanding as well.

Kevin's questions  raise the issue of selective enforcement.  Does failing
to act or sue in  every case result in the forfeiture of the right to bring
action in any  particular one?

Also, while some 18 states currently have publicity or persona rights
statutes on the books, Indiana and Oklahoma reach the farthest:  Death +100
years.  California is only 75 years.  New York does not recognize those
rights at all. Which leads us to the  inevitable:  With the centennial of
Twain's death next year, does the issue become moot?  Will CMG have any
rights left to claim  to represent?  Or does the trademark  aspect give them
what they need to continue?

Mark Roesler, head of CMG, has built a business based on the "branding"
of deceased celebrities.  Does that establish a commercial basis for a
property right beyond name and persona, one unaffected by current statutory
limits?  (His arguments in favor can be viewed on the CMG  website, under
"CMG News."):

_http://cmgworldwide.com/press/articles.html_
(http://cmgworldwide.com/press/articles.html)

As I mentioned, it has been a deep and murky pond, growing "amorphously"
as used in the link  above.  The guidelines seem to shift with whatever a
particular court decides in any given case, or the extent to which someone
is willing to go to pursue or defend a claim, and what may be at stake.

I agree that it's just plain nutty to think you couldn't paint a picture
of Twain on a Tee-shirt without the threat of a lawsuit. Heckuva world.
But I surmise that if I mass-produced them in '09, put them up for sale
on the web for $15  each, and sold 150,000 of them, I'd be hearing from
someone looking for a piece of that pie.

Roger Durrett

PS:  Thanks, folks, for the tips on  formatting.  This was composed prior to
receiving them.  I've tried a cut-and-paste with narrow set margins.  Maybe
it will work. (Addendum:   doesn't appear to have, unfortunately.)