[davem]

http://www.techdirt.com/articles/201...-culture.shtml original article http://www.nytimes.com/2011/03/28/op...pagewanted=all

Einstein is not the only example. While we might think of people like the Rev. Dr. Martin Luther King Jr., George Patton, Rosa Parks, Frank Lloyd Wright and Babe Ruth as part of our cultural heritage, available for all to use, the identities of each of them, and thousands more, are claimed as private property, usable only with permission and for a fee.

This phenomenon is fairly recent — and it’s getting out of control. For most of this country’s history, a person’s identity was not something that could be owned. While the unauthorized use of someone’s name or image was sometimes barred as an invasion of privacy, the right belonged to that person alone and could not be assigned to others. ,,,

This so-called descendible right of publicity has created a new kind of business: corporations that acquire and market dead people. So Rosa Parks sells Chevy trucks and Albert Einstein peddles everything from baby products to Apple computers. (And who knows how Elizabeth Taylor might be put to work now that she has gone to the other side?)

But say you wanted to write a play about a chance meeting between these two historic figures. Could you? While the play itself may be protected by the First Amendment, that doesn’t mean that the companies that manage Parks and Einstein might not attempt to assert control. Hebrew University has aggressively defended Einstein’s image, even blocking its use on a book called “Everything’s Relative.” And don’t expect to sell programs, posters, T-shirts or the other paraphernalia that might support your play without getting approval and paying whatever fee the owners of Parks’s and Einstein’s rights of publicity demand.

Contrary to what the owners of these identities claim, a right of publicity that continues after death does little to protect the reputations of the deceased.

Extending control over the identity of important people to their estates after death is, I think, to mistake how culture and art work and to elevate property rights to an importance that does us very little good. The identities of famous people as varied as Einstein, Elvis Presley, and Marilyn Monroe become part of our culture’s language. That cultural meaning then becomes part of the language of our cultural conversations, and as a part of that language it then has meaning that can be used in the sorts of compressed and symbolic ways that culture and art thrive on. To remove the identities of dead people from this language in the absence of payment for their use would substantially damage our culture.

So, this is much bigger than whether a writer should be able to use a dead person as a character in their book/play. Its about restricting our culture in what are potentially very damaging ways. Its about our freedom to use our shared culture. Culture grows & develops by people being free to play around with ideas/concepts received from the culture around them. So, this author produces a piece of nonsense involving Tolkien & many Tolkien fans find that a bit off - especially when Tolkien's heirs are leading the objection...but

This is just a tiny part of a massive cultural shift. If these kinds of moves succeed then not only will increasingly large parts of our culture be off limits for discussion unless we pay the rights holder, but even we were to offer to pay, we would be restricted in the way we could use those elements. And the other side is - as the articles point out, if a dead person becomes property then the owner of that property can decide what happens to it. In other words, you might be 100% behind the Tolkien Family in their attempt to prevent Tolkien being used in this way in this book, but if they, & the other Estates out there, succeed, then you may well see down the line less responsible owners of these persons doing things with their images that you don't approve of. Maybe in 20 or 30 years we'll see the owners of Tolkien's image using it to promote/advertise things you don't like - & it won't be possible for you or anyone else to counter that portrayal by presenting Tolkien in a different way. Currently someone could write a novel/play that has Tolkien doing something you don't approve of but you could respond by writing a novel/play that presented the opposite view. If these moves succeed you couldn't do that - the only way Tolkien or any other dead person could be presented is the way the people who owned him allowed.