Michael Jackson's legacy: Who has the right to profit?

Early reviews of Michael Jackson's documentary film, "This Is It," suggest that it could mark the beginning of a restoration of Mr. Jackson's reputation. Now, a group of lawyers and marketers are focused on the question of who has the right to profit from that career now that Jackson is gone.

"The movie is ... a signal that his image is being cleaned up and ready to be exploited for all it's worth," says Michael Epstein, professor of law at Southwestern University School of Law in Los Angeles.

But as what is being called "the marketing of Michael" swings into gear, some marketing and legal analysts suggest that the laws governing who can profit from and participate in Jackson's posthumous image and likeness are not keeping pace with the times.

This is an era where people participate on a large scale with the icons they love and help to create value, says Jack Lerner, director of the University of Southern California's intellectual property law clinic.

"And it is time, perhaps, for the law to catch up," he says, adding "fans who have helped build up a celebrity ought to be able to have fan tributes and themed parties without fear of being slapped with a cease-and-desist order."

In other words, should anyone – fan or retailer alike – have the right to plaster the image of Michael Jackson on anything from a baby rattle to a hubcap to a dry-cleaning truck?

These are what Babson University professor of marketing law Ross Petty calls "fans rights," and they shouldn't be controlled by only one person or organization after a star passes on.

"Other parties could also produce posters, T-shirts, etc. so that fans would have greater choice and a range of prices," he says.

The advent of digital technology and the Internet has created serious challenges for the estates of dead celebrities attempting to maintain and control a valuable image.

"The primary purpose behind the laws granting personal rights after death has been to provide revenue to heirs," says Alan Behr, partner with Alston & Bird's intellectual property practice. "But an unintended consequence is to allow the control, in part, of other rights."

"Because the estate of Fred Astaire has been so tight with the control of his image and performances, the reputation of the music of Irving Berlin, which provided the late singer/dancer with signature pieces, can be argued to have been compromised," says Mr. Behr. "A whole generation is growing up without enough exposure to Astaire to understand his importance in pop culture, and their appreciation of Irving Berlin has likely suffered as well, because they can't see or hear very easily any more how Astaire interpreted his works."

Nonetheless, over the decades, laws in a dozen or so states have enshrined protection for the right to profit from a dead celebrity's image. California's laws are the strongest, giving the estate of a dead celebrity 70 years to profit before that right goes into the public domain.

Brand consultant Michael Stone CEO of The Beanstalk Group, who has helped manage the Andy Warhol estate for decades, says legal protections are vital.

"A celebrity that has worked hard to create something during their lifetime should be allowed to pass that down to their heirs without worrying that its value will be taken away by others who want to exploit it," he says.

Balance is the key, says Barry Werbin, chair of the intellectual property practice group at the Herrick, Feinstein law firm. While he agrees that there is room for discussion about the number of years an estate should be allowed to profit from a dead celebrity's image, he does not think it should be eliminated altogether.

"Should it be 25 years, should it be 50 years ... I don't know," says Mr. Werbin. "It's similar to copyright law," he says. "Nothing should be forever."

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