Nina Simone (née Eunice Waymon) was an American icon – a singer/songwriter and civil rights activist whose work was proudly, and inextricably, intertwined with her identity as a black woman with dark skin and classically African features. Raised during a time when she was told her skin was “too black” and her nose was “too wide,” Simone was defiantly proud of her looks and worked to change the popular perception of beauty in America. Her music was inspired by both heritage and racial inequality, and she performed and spoke at many civil rights meetings, advocating for violent-revolution in the style of Malcom X. Simone left the United States in 1970 as a protest to the injustices she had experienced throughout her life, succumbing to breast-cancer on April 21, 2003, at the age of 70 in France.
Simone’s extraordinary life is the subject of at least two recent movies. What Happened, Miss Simone?, the documentary made in cooperation with Simone’s estate and daughter, Lisa Simone Kelly, was produced as a counterpoint to Nina, an unauthorized biopic. Nina focuses on Simone’s romantic relationship with her manager, Clifton Henderson. A classic story, except for the fact that Henderson was a gay man who never had a romantic relationship with Simone. The inaccurate depiction of her mother’s life is what most bothers Kelly, but what has others bothered is the casting of Zoe Saldana as Nina.
Zoe Saldana is lighter skinned than Simone was, and her role in the movie required makeup to darken her skin and the use of a prosthetic nose to change her appearance to more closely match Simone’s. Many have asked why a darker skinned actress whose features naturally recall Simone’s wasn’t cast. And some are calling the extensive use of makeup on Saldana “blackface.” The casting has sparked outrage over Hollywood’s seeming inability to cast darker skinned actors and “colorism,” the idea that skin tone, in addition to race, determines your opportunities.
So the question is, how can an entire movie, a biopic no less, be made without the permission of a person’s family and estate? In an interview with EBONY, Kelly talked about the rights to her mother’s music, saying:
When my mom passed away, as her only child, I had no idea who the heroes were, who the monsters were. I realized just how protected I was when the queen was alive. When I stepped into my mother’s shoes and became the gatekeeper of her legacy, there were many people coming at me with regards to many things. There are some rights that are owned by me. There are some rights that are not.
Post-Mortem Right of Publicity in America
So, it looks like at some point Kelly lost full control of Simone’s right of publicity and no longer has the authority to stop a movie like Nina. The right of publicity is an individual’s right to control the commercial use of their identity and prevent its commercial misappropriation. It protects against the unauthorized commercial exploitation of a person’s likeness, nonexhaustively including their name, picture, and voice. The right of publicity is not federally protected right; it is governed by state law and treated differently in each state. And what state you’re in can make a big difference regarding whether a person’s right of publicity is descendible – that is, able to be inherited by family or given away after death. Post-mortem right of publicity, whether a person’s right of publicity survives their death, varies from state to state, and some do not recognize it at all.
The Most Significant Relationship Test, viewing 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. It’s the majority test because of its predictability. Although a person can own several homes, by law you can only have one domicile at a time, 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.” The domicile test is fact of residence and intent to remain.
The Government Interests Test, viewing the right of publicity as a tort, is a balancing test and the test a minority of courts use. This two part tests (1) weighs each state’s policy, asking if application of the forum law will advance the policies the law intends to promote, and (2) looks at what contacts there are in jurisdiction involved. The first factor 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 right of publicity interest is being allegedly misappropriated. The second factor then examines how important the actions that occurred within each state are to the case. 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. Although Nina Simone was an American citizen, her domicile and place of death was in France, and that means that a different set of laws likely apply.
The French (Not Really) Post-Mortem Right of Publicity
Nina Simone lived outside of the USA for over thirty years, eventually settling and passing away in France. France does not have a right of publicity in the same way that America does. Rather than a codified protection of a specific cause of action, French personality rights (e.g., right of privacy, publicity, moral rights) are protected under an umbrella of legislation. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms combined with Article 9 of the French Civil Code provide the grounds for protecting the commercial use of a person’s identity. Any person whose right of personality is violated on French territory may file suit in France.
Unlike the right of publicity, personality rights cannot be completely transferred or disposed of; however, they may be licensed for commercial purposes. In principle, personality rights are extinguished upon death, and are not inheritable. However, in cases where the use leads to personal damage to the heirs, a person may sue based on post-mortem personality rights; for example, in order to prevent the violation of the deceased’s memory and protect their human dignity.
Whereas the American right of publicity does not require a demonstration of value or celebrity to be enforced in most jurisdictions, French personality rights may only be exploited by a person’s heirs so long as their identity has demonstrable commercial value. Thus, if commercial value is established, then the “right of exploitation” is transmitted post-mortem to the heirs of the deceased. However, if the deceased never commercially exploited their image during their lifetime, nor allowed a third party to do so, then the heirs are not entitled to a post-mortem right of exploitation, regardless of whether a third party is making use of the deceased’s likeness.
Without access to the documents involved with Nina Simone’s estate and the movies about her life, it is impossible to determine the reasons that prevent Lisa Simone Kelly from seeking judicial help in controlling her mother’s likeness. Perhaps Kelly doesn’t want to fly to France in order to litigate, or maybe she doesn’t want to take the chance that French law will be applied in America. Unfortunately, it seems the most likely reason is that Kelly at least partially signed away her mother’s post-mortem right of publicity, or right of exploitation, at some point. Based upon her cursory discussion of it in the article, it looks as if she may not have been properly advised as to its value, or the intricacies of the control she would lose over future versions of Nina Simone’s story. Even if Kelly cannot control every commercialization of her mother’s identity, she’s done what she can to make sure her true story is told in What Happened, Miss Simone?