Is A Person’s Commercial Identity Inheritable? New Hampshire Legislature Says Yes, Governor Says No

by Mark Bousquet

On Wednesday, June 12, New Hampshire Governor John Lynch vetoed Senate Bill 175, which would have extended an individual’s right to commercially control their own identity beyond their own death by making identity an inheritable commodity. As written, S.B. 175 states that “individuals who are domiciled in New Hampshire at the time of death retain a protectable right regarding the commercial use of their identities that is descendible to their heirs or successors,” and that this right “endures for a term consisting of the death of the person plus 70 years after his or her death.” Of greatest concern to First Amendment advocates like the Media Coalition and the First Amendment Center is that the final version of S.B. 175 that was passed by the state legislature stripped out protections for journalistic and artistic endeavors, which are protected by state and federal Constitutions.

S.B. 175 marked the final product of a two-year collaboration between New Hampshire lawmakers and Matt Salinger, son of J.D. Salinger, who sought to prevent what he called “the inappropriate commercial exploitation of his father’s name and image.” The elder Salinger famously fought to keep his likeness out of the public eye, and the younger Salinger (who portrayed Captain America in the 1990 motion picture of the same name), has sought to continue this protection since his father’s passing in 2010. Salinger has lived in New Hampshire since the 1950s, in part because of the state’s “Live Free or Die” motto. According to Matt, “My father moved there in the ’50s because it was beautiful but also because of a certain kind of respect for individual rights. He basically wanted to be left alone and do his work, and New Hampshire, he quickly sensed, respected that.”

What began as the protection of Salinger’s likeness from commercial use on items like coffee mugs and t-shirts (two instances that had already occurred) first came to the attention of the Media Coalition in March of 2011 when they noted that S.B. 175 did not contain protections for video games:

S.B. 175 was referred to the Senate Commerce Committee on March 30 by Sen. Bradley. Before the bill was heard by the New Hampshire Senate Commerce Committee on October 26, 2011, Media Coalition sent the committee members a letter arguing that S.B. 175 should not exempt video games from First Amendment protection by explicitly stating that games are not “expressive works” and excluding them from a section that would exempt them from the bill’s provisions. The letter reviews relevant case law, most notably Brown v. EMA, to assert that video games are speech and, as such, are protected by the First Amenment and cannot be legislated differently than other media such as books, music, and movies.

The response by the New Hampshire legislature, however, wasn’t to alter the bill to reaffirm video games their Constitutional protection, but to remove “the provision exempting video games from protection as expressive works by stripping from the bill the provision defining and exempting ‘expressive works’ from the right of publicity.”

Upon passage of this stripped bill by the New Hampshire House, the Media Coalition sent a letter to Governor Lynch on June 8, 2012, urging him to veto the bill on the grounds of the potential chilling effect on journalistic and artistic endeavors:

S.B. 175 does not include a specific exception to the Right of Publicity for expressive works to protect the right to use the name or likeness of a living or deceased individual in books, plays, magazines, newspapers, music, film, radio or television program and other material that is of political or newsworthy value.

The legislation included an exception for expressive works but it was removed by the House. The decision to delete the clear, unequivocal list of material exempted from the Right of Publicity will cause uncertainty and encourage expensive litigation by any individual or surviving family that is unhappy with a book, movie, article or show. A noted public figure, or
his or her heirs, upset about an uncomplimentary book, could force the publisher to go to court to vindicate their First Amendment rights to publish and to re-establish the exceptions previously listed in S.B. 175 to use public figure’s name and likeness in the book or other media. In turn, the threat of costly and prolonged litigation would prompt self-censorship by
producers and distributors of biographies, histories, documentaries and other important social commentary. A publisher or movie producer would have to consider the cost of litigation when deciding to publish an unflattering biography or produce a critical documentary about controversial public figures.

In vetoing the bill, Governor Lynch argues that he feels S.B. 175 extends New Hampshire common law about a person’s right to control his identity during their life too far:

Because I believe that this legislation is overly broad, would potentially have a chilling effect on legitimate journalistic and expressive works that are protected by the New Hampshire and United States constitutions, and would invite rather than diminish litigation over legitimate journalistic and expressive use of a person’s identity, I have decided to veto this bill.

The protections for free speech that are guaranteed to all citizens under the state and federal constitutions are central to democracy and a free society. Legislation that could have the impact of restricting free speech must be carefully considered and narrowly tailored. SB 175 does not meet that test, in that it fails to distinguish clearly between commercial versus journalistic or expressive uses of identity. […] the final version of the bill contains no statutory exceptions to the right to control one’s identity. I believe that the omission of legitimate, clear exceptions for news and expressive works will inhibit constitutionally protected speech and result in needless litigation to judicially establish what should have been made explicit in this bill.

While I understand that the sponsors of the legislation intended to codify the rights to control the commercial use of one’s identity that has already been recognized in New Hampshire common law, SB 175 appears to go beyond the established common law and establishes the right to control the use of identity retroactively for 70 years after death. Such a result may lead to uncertainty, not finality. New Hampshire common law has not recognized a posthumous or retroactive right to transfer control of one’s identity to their heirs, and in this manner I believe the bill goes beyond its stated purpose.

Governor Lynch’s veto does not mean that S.B. 175 is a dead bill. According to Brian J. Buchanan of the First Ammendment Center, “There’s a chance the Legislature could override Lynch’s veto later this month. If it does, then could a painter be sued for an oil portrait of the great writer? Could no TV special be made about him without negotiations with his family? Would any future biographies have to be authorized, expunged of anything unflattering to Salinger’s image?”

The Comic Book Legal Defense Fund is a member of the Media Coalition, and comics would be liable to the same chilling effect S.B. 175 has on free expression as other journalistic and artistic endeavors. Comic creators could not depict a real person in a comic book, for instance, without violating the law, which would force them to have to weigh potential lawsuits by the family of that individual.

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Mark Bousquet is the Assistant Director of Core Writing at the University of Nevada, Reno, and reviews movies and television programs at Atomic Anxiety.