Gilden article on postmorten endorsements

Andrew Gilden of Willamette has written Endorsing After Death, 63 William & Mary Law Review (2022).Here's the abstract:

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and increasingly have been embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Marilyn’s name, have successfully brought false endorsement claims under Section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a highly-paid celebrity endorser even though she died almost 60 years and her “Estate” is controlled by individuals with zero personal connection to her.

This paper closely examines the growing body of posthumous endorsement law and sets forth a new framework that better respects both the agency of the deceased as well as the continuing bonds between the deceased, their fans, and their families. Intellectual property scholars have critiqued other forms of postmortem IP, such as copyright and publicity rights, but this article shows that posthumous endorsement rights pose unique and largely unaddressed concerns. First, these rights frequently pose a continuity problem: courts have allowed endorsement rights to shift from the decedent to their heirs to unrelated third parties without acknowledging just how differently situated each of these entities is with respect to the communicated endorsement. Second, these rights pose discursive problems: they allow rightsholders to speak in the “official” voice of the decedent, leveraging the individual’s continuing cultural influence into commercial and political endeavors that emerge long after their death. Third, these rights pose dignitary concerns: individuals are often symbolically brought back from the dead without their consent and forced to speak on behalf of entities that have purchased their goodwill on the open market.

Nonetheless, there are some important reasons for intellectual property laws to recognize at least some form of posthumous endorsement rights. Marketing scholarship has shown that posthumous endorsements are often material to consumers, and there is a shared interest among the decedent, their fans, and their families in shutting down false suggestions that a good or service received the decedent’s blessing. Accordingly, this article proposes that courts only recognize posthumous endorsements rights where there is both “privity and power.” An entity can only meaningfully endorse goods or services on behalf of a decedent—or affirmatively disclaim their approval—where they (1) own the image, word, or symbol that is signaling endorsement and (2) are empowered to make legal decisions on their behalf. Only when an individual is empowered to step into the shoes of a decedent, and required to act in the decedent’s best interests, can they fairly and accurately speak for the dead.

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