Hi All,

Interesting thread. Here's my two cents, which is general discussion based
on my unresearched understanding, NOT legal advice, with at least a few
errors:

I think the confusion here is that the legal basis for control of a
celebrity image is not copyright law. It is the right to publicity, which
comes from the privacy area of tort law (and sometimes a little bit of
trademark law, but not here). Under the law, one's image can be a property
right and so can survive death and be managed by an estate. Since suing
people, or threatening to do so, based on this right is used to get people
to pay for licenses to an image, it often intersects with copyright law in
ways that are not clear to anyone. Anyone who says this type of right is
settled and clear probably has a stake in one side or the other, usually the
commercial licensing side.

Right of publicity is a matter of state law (unlike copyright, which is
federal law), exists in about half the states, and is most developed as you
might expect, in CA and NY, where media law has had to evolve with the
entertainment business' needs. This is also true of IN law, which according
to CMG's Mr. Roesler on his website, is largely due to his own lobbying
efforts. CA and IN have expanded the postmortem right of publicity.

Here's a short, relevant article:
http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=September&artYear=2008&EntryNo=4209

Sometimes they win, sometimes they lose, as CMG did a few years ago in a
case over Marilyn Monroe's image. Last month, Woody Allen won against
American Apparel on a right of publicity claim. If you're interested in the
topic, I recommend Rebecca Tushnet's blog, which has a "right to publicity"
category.

The underlying questions are -- should a celebrity's estate have control
over their image? One the one hand, it provides a stable source of
stewardship for their legacy and prevents potential dilution. On the other,
this effectively locks up a public image from later use, by making living
artists who would like to use the image have to pay licensing fees, which
they often can't afford, or worry about being sued.

Trademark is a different issue, derived from the need to indicate that
commercial goods come from a single, consistent source. I'm pretty sure
Twain tried to tm his name and failed in court (this is somewhere in Loren
Glass' book "Authors, Inc."). So, if someone wanted to sell Mark Twain brand
white suits, that could be a potential tm, but then they would probably be
sued by CMG, who would want a licensing fee.

Returning to the email that started this thread, I'll spare my opinions,
except to say that if someone wants to write or film something original that
includes MT's image and chooses not to because they are afraid of being
sued, or can't afford the license, then I think we're all the poorer for it,

Alex