Jason Segel’s breakout role as a “serious” actor in The End of the Tour has proven to be a success. Segel plays acclaimed American novelist David Foster Wallace in the last days of a publicity tour, after his novel Infinite Jest hit the shelves to critical acclaim in 1996. The movie is based solely on the book Although of Course you End Up Becoming Yourself, which, in turn, is based on an unpublished Rolling Stone interview, and all three focus on several days leading up to Wallace’s last stop on his publicity tour in Minneapolis. However, nearly every review or article about the movie includes the fact that Wallace, if he was alive, would never have wanted this movie to be made, and that his widow and co-trustee are adamantly against the film. Wallace was a private individual who felt tormented about being a public figure, as evidenced by his writings. In 2008, Wallace succumbed to depression and ended his own life at the age of 46.
Post-Mortem Right of Publicity
It seems like Wallace’s widow and estate should have been able to stop this film from going to production using the right of publicity. The right of publicity is an individual’s right to control the commercial use of their identity, or put another way, to prevent the commercial misappropriation of their identity. It protects against the unauthorized commercial exploitation of a person’s likeness, including their name, picture, and voice, among other things. State law governs this right, so there is a fair amount of variability in how the right of publicity is treated. There are two main theories about the right of publicity, the majority is that its current theoretical basis is in property rights (commercial misappropriation), while the minority holds that is in torts (violation of privacy rights). To be fair to the minority, the right of publicity as it exists today did evolve out of the right of privacy in the early 20th century. Regardless, most states do not address the issue of whether there is a post-mortem right of publicity, that is, whether the right of publicity of an individual survives after their death.
States without a post-mortem right of publicity include New York, Wisconsin, and, arguably, Louisiana. States with a post-mortem right of publicity include, notably, California, Tennessee, Illinois, Indiana, and Washington State. The post-mortem terms in these states range from ten years or eternity through use (similar to trademark viability), to twenty, fifty, seventy, or even 100 years. However, not all of these states have a reach-back provision. In some states, such as Illinois, the statutory post-mortem right of publicity is only applicable if the deceased passed after the effective date of the statute (Jan. 1, 1999), ergo; Illinois does not have a reach-back provision. California, on the other hand, has a 70 year reach back provision from 1985 onwards (initially it was a 50 year provision). Interestingly, California has an online registration scheme to secure these post-mortem rights.
The majority test, which views the right of publicity as a property right, states that a person’s domicile at their time of death gives the applicable state law when deciding whether there’s a post-mortem right of publicity. Referred to as the Most Significant Relationship Test, it is all about predictability. Because an individual can only ever have one domicile, defined in Ballantine’s law dictionary as “[t]he place where a person has his true fixed permanent home and principal establishment, and to which place he has, whenever he is absent, the intention of returning, and from which he has no present intention of moving,” little is left to question on what state’s laws apply. The simple domicile test is (1) fact of residence, and (2) intent to remain.
The minority test, viewing the right of publicity as a tort, is a balancing test, called the Government Interests Test. The first factor weighs the policies of each state involved, asking if application of the forum law will advance the policies the law intends to promote. It examines (1) the needs of interest in commerce; (2) relevant policies of the forum and other interested states; and (3) the interests of the involved states in determining the issue. Generally, the states involved will be the state of domicile, the state where the death occurred, and the state where the tort occurred, or in this case, where the right of publicity interest is being allegedly misappropriated. The second factor looks at what contacts there are in each jurisdiction. This test is more subjective than the most significant relationship test, and allows for the possibility of using state law other than that of the state of domicile. Wallace lived in Illinois for much of his adult life, but died in California. It is unclear where his domicile was, but either way, it seems like there was a legitimate post-mortem right of publicity claim.
So why hasn’t Wallace’s widow or estate sued to stop the movie? Probably because there are some copyright issues tied to the book and its author, who Wallace agreed to let interview him. Copyright refers to original works of authorship fixed in a tangible medium for more than a temporary period. Copyright holders have several exclusive rights under the Copyright Act of 1976, including the right to (1) copy or reproduce; (2) create derivative works; (3) distribute works; (4) perform works; (5) publically display works; and (6) digitally transmit works. Section 301(a)(b) of the Copyright Act is the preemption section. Preemption means that there cannot be a state law that interferes with, duplicates, or is concurrent with the rights in the copyright statute. Thus, if the state law rights are equivalent to the exclusive rights afforded under the Copyright Act, the state law claims are preempted.
Copyright and the right of publicity can coexist under the law because an identity or persona is incapable of being fixed in a tangible medium. Despite this fact, the right of publicity cannot be used to control an artistic work itself, excluding contractual scope issues. Thus emerges the two part preemption test for determining whether copyright claims preempt right of publicity ones.
- Does the subject matter of the state law claim fall within the subject matter of copyright under § 102-103; and, if yes,
- Are the rights asserted under the state law equivalent to the exclusive rights of copyright owners under § 106?
Thus, the first factor of the test asks whether a copyright is at issue (an original work of authorship fixed in any tangible medium of expression for more than a temporary period), and under the second factor it asks whether there is an extra element that makes the claim different than that of a copyright claim. If the claims are based on commercial misappropriation or non-copyrightable personal attributes, rather than a performance, then the right of publicity claim is unlikely to be preempted. If you clearly express how the identity is used, and especially if there is an element of endorsement, then your right of publicity claim is more likely to be successful.
So what’s up with The End of the Tour? There are three copyrights at issue, (1) the original, unpublished interview with Wallace; (2) the copyright in the book; and (3) the derivative work copyright in the movie. Because (1) Wallace agreed to the original interview, there is no commercial misappropriation of his identity there, and no right of publicity issue. Now, since the (2) book was written by the original interviewer and is largely based upon the interview, there is also no right of publicity issue there for the same reason. And, because (3) the movie is a derivative work based upon the book, it’s likely that Wallace’s original consent carries through to the movie rendering a right of publicity claim probably ineffective.
Thus, although Wallace’s widow and estate could probably prevent a full biopic about Wallace’s life from production, this specific movie is out of their reach. Because the movie is based solely on the book Although of Course you End Up Becoming Yourself, it’s a derivative work. A derivative work is a work based on a preexisting copyrighted work that recasts, transforms, or adapts the original work so that, on the whole, the new work is also an original work of authorship. And, as we know, the right to create derivative works is one exclusively afforded to the owner of a copyright. Thus, unless the interview (1996) or book (published in 2010) had contract provisions relating to Wallace’s right of publicity, any attempt to stop The End of the Tour being made via a right of publicity claim would likely be preempted by copyright law. Wallace’s widow and estate would be attempting to control a copyrighted work (the movie) by using the right of publicity. It may strike people as unfair that Wallace’s widow and estate can’t stop what they perceive as a commercial misappropriation of Wallace’s identity, but it just goes to show you: all’s fair in love and contract negotiations.