Jan 182012

Recently the Centers for Disease Control used the prospect of a zombie attack to encourage Americans to think more about disaster preparedness. It was an interesting learning tool, using a premise seemingly silly and farcical but, as anyone who’s ever watched a zombie horror movie knows, nonetheless potentially dangerous. The idea of the dead coming after the living has always been the stuff of nightmares.

It also might not be quite so hypothetical. No, I don’t mean that the dead will rise from their graves and walk the streets looking for a fresh living brain to dine on. But in very real terms, the dead have an awful lot of dominion over the brains of the living, and that is plenty nightmarish too.

This realization occurred to me in a recent twitter conversation with a trademark lawyer about the Steve Jobs figurine a Chinese company wantd to sell. Apple deployed its lawyers to stop it, claiming the doll violates its rights in his persona.

There is plenty of room for debate about the merits of personality rights for the living. It’s understandable to want to protect people from having their likeness used to shill things they may not like or that otherwise dilutes the actual value of their true endorsement. On the other hand, that interest needs to be balanced with the public’s right to be able to freely speak about whatever it should so choose. Often these interests can come into conflict.

But the interest in controlling one’s likeness is extinguished once the person is gone. While they were alive it made sense to preserve their right to control their self-image in order to protect their own personal rights of expression. However once they are dead, there’s no such interest to be vindicated. Some would argue that the formerly living might have an interest in passing on whatever legacy value there might be in their personality to their descendants, and that interest may indeed be valid (or perhaps not — some might say that value is not created by the person as much as it is bestowed by the public), but at this point the rights of personality are nothing but a quasi-property right, and those property rights do not weigh nearly so favorably against others’ speech rights. Not even when others may wish to profit from such speech — the right to free speech does not incorporate the requirement that all speech be made for free. If, as in the case of the figurine maker, a company wishes to comment on the previous existence and notoriety of Steve Jobs by selling models that memorialize him, such speech should be permissible. For it not to be gives Steve Jobs, though no longer among the living himself, the censorious power to control the speech rights of the living who remain. Surely that’s not a power we’d want the dead to have.

But that’s not the only instance where the dead wield power over the living. We also see it in copyright, with terms lasting multiple decades — practically second lifetimes — beyond the life of the author. In fact, we key copyright terms to “life of the author plus 70 years.” In other words, we purposefully key copyright duration to the death of the author, and deliberately extend its reach well beyond it.

Which is completely absurd. Copyright exists to incentivize people to create so that other people can benefit from their work. There’s always tension between those interests because the incentive for some people to do their creating comes at the expense of other people’s ability to freely use, including in their own expressive way, what’s created. It makes no sense to compromise the latter’s interests to those of the former when there is no longer any chance for further creativity. Once a creator has left this mortal coil, as with the rights of personality, the law is useless to them: copyright simply cannot incentivize the dead to create anything. Yet it continues to affect (by design!) those who remain alive by restricting their rights long after the original author is gone.

The argument for why copyright should operate like this is similar to the arguments for why rights of personality should survive beyond the lifetime: just as the once-living person may have created value in their likeness (or not…), the once-living may have created value in their works and that value should be transferable after death as a quasi-property right. But it’s questionable whether the author, while alive, truly needed the prospect of such a lengthy property right in order to be inspired to create. Especially when endowing them with such rights gives them so much posthumous control over the speech rights of the living.

But that’s what these laws, as currently written, do. The dead don’t need to be rotting corpses roaming the streets looking for people’s brains to eat in order to pose a threat to them. They just need laws that let them sue.

 Posted by at 1:20 pm

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