Right of Publicity in Michigan

Take-Away: Unlike several other states, Michigan does not have a statute that formally recognizes the right of publicity. However, there is recognized a common law right of publicity by courts.

Background: As a generalization, the right of publicity arises from the right of privacy. As one Tax Court Judge recently described it in the highly publicized Michael Jackson estate tax proceedings in the Tax Court, it is the “right to be left alone.” Estate of Michael J. Jackson, Tax Court Memo 2021-48.

Defined: The right of publicity is an individual’s right to control and profit from the commercial use of their name, image, or likeness, (NIL) while preventing others from exploiting their persona for personal gain.

Distinguished from the Right of Privacy: In 1977 the U.S. Surpreme Court found the right to publicity to be a separate property right, independent of the right of privacy. Zucchini v. Scripts-Howard Broadcasting Company, 433 U.S. 562 (1977).

State Law: The right of publicity is controlled by state law, either by statute or at common law. Most jurisdictions do, however, recognize some First Amendment limitations to the ability to bring a claim for breach of a right of publicity, e.g. the use of an individual’s name or likeness for news reporting or portraying an individual in a book, film or radio program for public interest and not commercial exploitation.

Statutes: Some state statutes require as a precondition to recognition and enforcement of the right to publicity that the name, image or likeness was actually exploited during the individual’s lifetime. Other state statutes require that the individual’s name, image or likeness have commercial value during that individual’s lifetime or at death in order to be an enforceable right. Yet other state statutes tie the protection of a right of publicity to enforcement only within the state’s geographic boundaries. In short, there is considerable differences among the state statutes that seek to protect the right of publicity.

Example: Two nearby states provide a sample of how these state statutes that recognize and enforce the right of publicity can differ:

Indiana has had a statute that recognizes a right of publicity since 1994. Its statute does not require as a condition any commercial exploitation during the individual’s lifetime. The Indiana statute provides for 100 years of protection of the right of publicity after the individual’s death. Its statute is very broadly phrased and covers: name, voice, signature, photograph, image, likeness, distinctive appearance, gestures or mannerisams.

In contrast, Ohio’s statute requires that there be some commercial value at the individual’s death, which right extends for 60 years after that death. Ohio’s statute provide’s less protection than Indiana’s since it protects: name, voice, signature, photograph, image, likeness, or distinctive appearance.

Michigan Right of Publicity: Michigan does not recognize by statute the right of publicity. Rather, Michigan has common law, albeit limited, that recognizes an individual’s right of publicity. This recognition arose in a federal court decision that determined if there was a post-mortem right of publicity in Michigan.

Herman Miller, Inc. v Palazzetti Imports & Exports, Inc., 270 F.3d 298 (6th Cir. 2001)

The Court found that the right of publicity is a right and interest in the commercial exploitation of a celebrity’s death.

District Court: The District Court judge recognized a post-mortem right of publicity under Michigan common law, while acknowledging that Michigan state courts had not addressed the existence of a right of publicity or the the continuance of that right after the individual’s death. Despite any statute to this effect, the District Court concluded that if confronted with this question, Michigan courts would recognize such a right of publicity.

Appeals Court: This Court observed that no common law decision in MIchigan addressed the right of publicity. It then noted that Ohio [which by the way, is not Michigan] at one time had rejected the concept of the right of publicity as a property right, but it also noted that Ohio had since enacted its right of publicity statute, which included post-mortem protection.

The Court then cited the ‘weight of authority’ to indicate that the right of publicity is more properly analyzed as a property right and thus is descendible.
Therefore, the District Court did not err when it recognized a post-mortem right of publicity under Michigan common law.
However, the Court did not address the time period for which the post-mortem right of publicity survives after an individual’s death.

Topics for a later date?: Several other questions pertain to the right of publicity on an individual or celebrity’s death that are not covered in this introductory missive. Maybe they will be at a later date (probably so if Michael Jackson’s estate appeals the value of his right of publicity for federal estate tax purposes.) Some of those questions include the following:

Which law governs when celebrities are resident in one state, yet their name, image and likeness are used and exploited world-wide? Can an action be brought in Indiana with its 100 year protection of the right of publicity by a California celebrity’s estate (which limits the protection to 70 years after the individual’s death?
What is the value of the decedent’s right of publicity? Can it be valued using one of the three primary bases of asset valuation- income, market, and cost? Which method, if any, applies best to ascertain the right’s fair market value?
If the decedent dies in a state that does not recognize the right of publicity, is there still some value attached to it since the right of publicity could be enforced in other states where a statute exists, i.e. no property in the home state but still property in many other states?
In the Estate of Michael Jackson, the Tax Court Judge noted a ‘pair of problems’ encountered to value Jackson’s right of publicity: (i) the need to distinguish between the value of an asset and the value of its management (post-mortem- the judge noted that after Jackson’s death, those assets had “been managed with stunningly greater competence;” and (ii) how to measure ‘synergies’, i.e. how to measure the effect that separate assets can have on each other’s value?
How to plan for an individual’s right of publicity? Steps that the individual may take during his/her lifetime can have a dramatic impact on post-mortem values. Example: Robin Williams took extraordinary measures to stop his NIL from being exploited after his death. He transferred to a trust his name, voice, signature, photograph, or likeness to prohibit them from being exploited for 25 years after his death, apparently to shield his heirs from having to pay estate taxes on the value of his image or likeness. After the designated 25 years, Robin’s right of publicity ‘attributes’ are to then be transferred to his private foundation.

Conclusion: Name, image and likeness is a hot-topic these days in college sports. In light of the value the Tax Court assigned to Michael Jackson’s estate [estate valued it at $2,105 vs IRS value assigned of $434,261,895 vs. Tax Court determined value of $4,153,912] much more attention will be paid in the coming years when a celebrity or famous person dies and the IRS attempts to place a value on their right of publicity.