Who Owns You After You Die? A Massachusetts bill opens a window on a shifting corner of the law.
The idea for the law came, more or less, from Bill Cosby. The comedian, who lives in Shelburne Falls, was worried about what would happen after he died—that opportunists would one day use his name and image to promote stuff he’d never want to be associated with. Cosby’s lawyer called his state senator, Stanley Rosenberg, and asked him to sponsor a bill that would let her client—and everyone else who lives in Massachusetts—protect their faces, names, speech patterns, and various signature affectations by passing the rights to them down to their heirs.
Cosby’s lawyer got results. Late last month, Rosenberg’s bill passed the Senate in Massachusetts and was sent to the House Committee on Ways and Means. It could be passed before the end of the year.
If the bill becomes law, people in Massachusetts—most notably those who, like Bill Cosby, have built up bankable personas over the course of their lives—will be able to treat their identities as pieces of property that continue to exist in the world long after they do. For 70 years after your death, according to the proposed bill, your identity will legally live on, and your heirs will be able to own it, or sell it, or sue anyone who uses it without asking.
A law that protects you from posthumous exploitation might seem like an intuitive move; after all, nobody wants to imagine their face, or their mother’s face, being used in a way they disapprove of. But the idea is also a relatively new one, and if the bill passes it would place Massachusetts on one side of a little-known shift in how the law treats personal identity in America. At the heart of the matter is the existential-sounding question of whether our public personas—the versions of “us” we construct during our lives—are an ownable thing that can be bought and sold, or whether, after we’ve left the stage, they vanish into the air and essentially belong to history.
There was a time when celebrities couldn’t do much to stop people from making unauthorized money off their fame even during their lives. But today, it’s understood that if someone wants to use, say, a photo of Anna Wintour’s signature bob to promote an energy drink, they need to get her permission first. To date, 13 states have passed laws that take this notion a step further, and explicitly make the rights to a person’s identity a piece of property transferable after death, not unlike a car, a house, or a gold watch. They are even transferable in advance, while the person is alive. Already, a peculiar network of companies has arisen to manage dead people’s identities—most notably CMG Worldwide, which handles a hall of fame list of clients that includes the estates of James Dean, John Belushi, and Billie Holiday—and to lobby states to pass post-mortem publicity laws.