Abstract

Excerpted From: Dane D. Norvell II, The Appropriation of Black Postmortem Rights of Publicity in the Age of Police Brutality, 93 Mississippi Law Journal 1223 (2024) (157 Footnotes) (Full Document)

It was after 8:00 p.m. when he gasped for air under the knee of a Minneapolis police officer. Nine and a half minutes later, George Floyd died. Seven hundred miles away on a Louisville night, she was at home when the battering ram shattered her apartment door and the suspected intruders open-fired, lynching Breonna Taylor. Public disdain for these murders took the form of protests that spread across the country--unrest the country hadn't been seen since the 1992 riots in Los Angeles, California. In a show of support for the victims, celebrities and common folk alike purchased everything from apparel to household accessories sporting the image of the victims whose lives that were cut short. What many purchasers didn't know was that they were engaging in the “e-commerce ecosystem” monetizing the deaths of Black Americans effectively made famous because of their death. Though some vendors appear to use profits earned from the merchandise to aid social justice groups, the widespread commodification of the victims' image, or items directly connected to their deaths, is a real issue.

A remedy to discourage this appropriation exists in the right of publicity. However, the right of publicity is solely a “creature of state law.” In general, the right of publicity grants “exclusive dominion and control over a person's name, likeness, image, or any attribute indicative of that person's identity.” With each jurisdiction defining the right's scope differently, coupled with the lack of a federal statute on the matter, the protection of this right seems illusive and the extent of its shield unclear. Arguments for uniformity have latched themselves to a need for federal guidance in the form of potential statutes, but have neglected to offer solutions that would institute actual change for the everyday individual.

Instead, these arguments focus on remedies for individuals fighting the commercial exploitation of their likeness during their lifetime, thereby limiting protection to those who have accrued fame and earned the title “celebrity.” But what about the unfortunate soul murdered by law enforcement whose name is used commercially because of their death? The extension of this right postmortem is even more rife with differences in state legislation and judicial opinions. The unfortunate consequence of this is that the name, image, and likeness of the common person (i.e., the non- celebrity) is left to be exploited in many jurisdictions in life and death. An emphasis seems to be added to the fame and notoriety that celebrities have gathered rather than the impact of the commercial exploitation.

Though this Comment recognizes the need for federal intervention, it does not intend to offer what a model statute looks like. Rather, it argues the need for a federal standard with an emphasis on the decidability of publicity rights through postmortem rights of publicity. Additionally, it offers the Postmortem Lynching Doctrine as a piece of the puzzle to ensure the protection of those made famous because of events that caused their death.

[. . .]

There is a strong need for a uniform statute recognizing a postmortem right of publicity. While some states have codified the right through statutes, others rely on common law principles. Beyond legal considerations, the right of publicity raises questions about societal values and ethical norms. As forums navigate this landscape, the boundaries between public and private life become increasingly blurred. Public perception plays a crucial role in shaping the discourse around the protection of identity, and ethical considerations must be integrated into legal frameworks to ensure a holistic approach that respects both individual rights and societal interests.

The most effective way to achieve this is through the creation of a federal statute. However, with the current array of state statutes available, uniformity, as well as constitutional implications have left brutality victims at risk of having their name, image, and likeness commercially exploited. Though this Comment recognizes the need for a unified standard, it does not attempt to solve the puzzle and dictate what a model statute should look like. Rather, it suggests a necessary component to this future authority that focuses on the postmortem right of publicity.

This component lies in the Postmortem Lynching Doctrine. By analyzing (1) the reputation the person attained during their lifetime, (2) the impact their death had on their public recognition, (3) the duration of the fame or public interest that persisted postmortem, (4) the societal impact of their death, (5) the coverage and public response to the death, and (6) the cultural, artistic, or humanitarian contributions that arose from the individual's death, courts can expand the scope of protection for the postmortem right of publicity and help a decedent's estate adequately protect their interests.

Recipent of the 2023-2024 Outstanding Comment Award. Staff Editor (Vol. 93) Mississippi Law Journal; J.D. Candidate, 2025, University of Mississippi School of Law; M.B.A., 2022, University of Memphis; B.A. in Political Science, 2020, University of Memphis.