RIGHTS OF THE DEAD by Kirsten Rabe Smolensky* (Page 8/41)
Interest Theory: Deceased Can Have Interest That Survive Death
Assume that a person dies and his neighbor spreads defamatory remarks about him. These remarks hurt the decedent’s reputation, regardless of whether he is alive and can become emotionally upset by the statements. The fact that he does not know about the harm does not mean that a harm to the decedent’s interest, namely his reputation, has not occurred.
One might respond that while the decedent’s reputation is harmed in this example, the decedent is not harmed because he cannot know about the defamatory comments after his death. But knowledge of a legal harm is not required for a legal harm to occur. Take, for example, a living landowner whose land is trespassed upon by a harmless trespasser without his knowledge. In this hypothetical, the landowner’s legal interest is harmed even if he never discovers the trespass. Similarly, even though a decedent will never know about any particular harm to his posthumous interests, that does not mean that a harm has not occurred or that such harm should not be protected against.
In ruling that Elvis Presley’s right of publicity survived his death, the New Jersey District Court said that “‘[i]f the right [of publicity] is descendible, the individual is able to transfer the benefits of his labor to his immediate successors and is assured that control over the exercise of the right can be vested in a suitable beneficiary.’” While the court notes that posthumous rights of publicity incentivize living persons to work hard, it also notes that it is important for individuals to be able to choose an appropriate beneficiary, presumably one who will exercise the right of publicity judiciously and in a way that protects the decedent’s interest in his reputation.
Others have also noted posthumous rights protect decedents’ interests. In discussing his efforts to enhance protections for deceased celebrities in California, the attorney for Marilyn Monroe LLC said: “Ms. Monroe expressed her desires in her will—that the Strasberg family should be the protectors of her persona. The enactment of this legislation helps ensure that the wishes of Ms. Monroe and all other deceased personalities will now be fully respected.” What drives many posthumous rights is not only the recognition that some interests survive death, but also a desire to respect decedents’ wishes.
However, the realization that some interests survive death does not necessarily lead to the conclusion that all interests must or should survive death. For example, interests that “can no longer be helped or harmed by posthumous events,” such as a secret desire for personal achievement, die upon the death of the interest-holder. Minimally, the distinction between interests that survive death and those that die with the decedent turns on whether a record exists of the particular interest in question. The record could exist either in the mind of a surviving friend or family member, or it could be recorded in writing. But, if an interest is incapable of being known after death, then the law cannot protect it.
Furthermore, the simple fact that an interest survives death does not require that the law recognize this interest as a posthumous legal right. Theoretically someone could die with a certain set of interests written in a document, perhaps a will. These interests might include the desire to transfer assets to one’s children after death or the desire to have one’s flower garden tended in perpetuity. Given the wide range of posthumous interests that survive death in a philosophical sense, the law’s purpose is to choose which of these interests are worthy of legal recognition.
Interest Theorists make few suggestions about which surviving interests should be recognized as posthumous legal rights. This determination requires a theory about which sorts of posthumous rights should be recognized.
Interests that survive death.
The right to have their estate governed as they requested
The right to privacy for their family members
Posthumous interest to protect name from being defamed via family, friends and in the case of artists their fans.
Posthumous right to constitutional free speech. If the living has the right to free speech those with an interest to the deceased should be able to speak for the decedents.
The decedents should have a posthumous right to protect and preserve their legacy through friends, family members or fans in the case of an artist.
An artists may desire that his or her artistic work survives him/her. In that case there has to be people who continue to support or buy the works. His/her fans would be responsible for maintaining that interest because they will continue to buy the product.
Right not to have sperm/viable eggs removed from body unless that request has been made, in writing, while living.
Right to safeguard reputations in cases of defamation and invasions of privacy.
Right to artistic creations, name and image
If death marks the end of conscious existence, shouldn’t it mark the end of legal existence as well?
The right of publicity to survive death: the right of an individual to control the commercial value of their name, image and likeness. The right of publicity was used by the singer Bette Midler to stop a car company from using a singer in a commercial who sang in a similar style to Midler and by Jacqueline Kennedy Onassis to stop an advertiser from using an Onassis look-alike. http://www.alternet.org/story/147332/how_dead_people_have_more_rights_than_you_do!
The deceased DO have INTEREST that survives death. They may be DEAD but they are not DONE. Let’s make sure those interest are respected and carried forward by supporting the AdLLaw Initiative. Sign the petition at:
MJ Brookins, Advocate/AdLLaw Admin