Burdens of the Dead: Postmortem Right of Publicity Statutes and the Dormant Commerce Clause

Abstract

This Note argues that current state postmortem right of publicity statutes are unconstitutional under the dormant Commerce Clause. The dormant Commerce Clause doctrine is an implicit restriction within the Commerce Clause that prohibits states from regulating interstate commerce. The current patchwork of state postmortem right of publicity statutes violates the dormant Commerce Clause in two different ways. First, postmortem right of publicity laws containing “all comers” provisions like those in Indiana, Washington, and the proposed bill in New York violate the dormant Commerce Clause because they can be applied extraterritorially to the estates of nonresident individuals. By allowing non-resident estates to bring right of publicity actions, these laws can be used to stifle commerce occurring wholly outside of the state—precisely the sort of burden the dormant Commerce Clause prohibits. Second, even those postmortem right of publicity laws that do not contain “all comers” provisions can violate the dormant Commerce Clause when applied to certain businesses operating without distinct geographic boundaries, such as websites. Courts have struck down state laws regulating website content in the past under the dormant Commerce Clause, reasoning that such laws create de facto national regulation and impose the policy preferences of one state on other states in which a particular website can be accessed. The same principle can be applied to state postmortem right of publicity laws, which in effect require website operators using the likenesses of deceased individuals to tailor their business practices to the most expansive postmortem right of publicity provisions. In this way, state postmortem right of publicity statutes impose significant costs on Internet content providers by adding another group of right holders with which those content providers must negotiate. The desire to protect individuals from commercial exploitation after death—especially beloved celebrities like Prince—is understandable. The dormant Commerce Clause, however, prohibits one state from designing the means by which that protection is afforded across the entire country. This Note proposes that the only means of remedying the constitutional issue posed by the current patchwork of postmortem right of publicity statutes is through federal action. Congress must either create a federal right of publicity or explicitly authorize states to create their own right of publicity laws. Part I traces the origination and evolution of state postmortem right of publicity laws over the past forty years, concluding with New York’s recently proposed bill. Part II examines current dormant Commerce Clause jurisprudence and how the dormant Commerce Clause has been applied to invalidate extraterritorial state laws and regulations of the Internet. Using the recently proposed bill in New York as a case study, Part III shows that: (1) postmortem right of publicity laws with “all comers” provisions are facially unconstitutional under the dormant Commerce Clause; and (2) other postmortem right of publicity laws are unconstitutional as applied to Internet businesses. Part III then concludes by suggesting that congressional consideration of the right of publicity is necessary to alleviate dormant Commerce Clause violations created by current state right of publicity statutes.