The use of the image of a deceased personality, especially one whose estate is administered in the USA, in any commercial, advertising, endorsement or merchandising situation is protected by various laws which dictate that, in most countries of the world, the estate or legal representative of any deceased person, should have previously approved the use of that image, especially if the image has been modified or altered in any way.

Even if the image is used in religious or charitable advertising, permission from the estate must first be obtained. To use such an image (especially of a deceased Hollywood star) in a commercial situation without first obtaining permission is highly likely to render the advertiser and the publisher or broadcaster liable to prosecution and payment of substantial damages. (Obviously, this does not apply if images are used in a non-commercial or editorial manner). This is also quite separate from the need to obtain permission for the use of any image from the copyright owner.

However, there are exceptions. In the United Kingdom it is permissible to use the image of a deceased ‘British’ personality without first obtaining permission from anyone, except the copyright owner and provided the image does not contravene the uniquely British law of ‘passing-off’. For example, misleadingly implying that a deceased person may have used a particular product or service during his or her life, unless it can be proven that they actually did so. * (See ‘Our View’ below).

Strictly speaking, it is also possible to use the image of a deceased foreign personality (not of EU birth or residence) in a commercial situation within the United Kingdom, provided permission has been granted by the copyright owner, but without obtaining permission from the estate. PROVIDED use is strictly limited to within the United Kingdom. However, this can be dangerous and is highly inadvisable for many reasons. ‘Dead Famous’ will advise clients on this.

Before approaching the estate of any deceased celebrity with a proposal for the use of an image (photograph, film, video etc.) in a commercial or advertising situation, as has been stated, it will first be necessary to obtain permission (or an option) for the use of the image from the copyright owner. Unless the advertiser is the copyright owner (as in the case of a piece of original advertising artwork) in which case confirmation may be required.

The copyright owner will usually be a photographer, film company, picture library or archive. It is NOT normally the estate, which rarely own copyright material. Substantial fees are often payable to copyright owners.

The estate, or legal representatives, will not usually grant permission for the use of an image unless the copyright owner has already given written approval, especially if the image is to be modified or digitally altered in any way. However, copyright owners usually defer permission until the estate has given written approval, as they are well aware of the legal penalties involved. This is a classic ‘Catch 22’ situation.

‘Dead Famous’ is able to advise clients on where to obtain copyright material and how to avoid this problem.

Lawyers for the estates will then request a large amount of information for which ‘Dead Famous’ has devised a number of straightforward forms for our clients to complete. A draft contract is required at this point, the legal costs of which must be borne by the client.

Having negotiated many such contracts, ‘Dead Famous’ is uniquely placed to advise clients on the most persuasive form in which to present their proposal, which is most likely to receive prompt approval. ‘Dead Famous’ also have many draft contracts that have been pre-approved and used many times in similar situations, thus saving our clients many thousands of pounds in legal fees.

Negotiations with the estates, can be lengthy and costly, with no guarantee of success, unless properly advised by experts. ‘Dead Famous’ know the deadlines to which advertising agencies are obliged to work and will always strive to accommodate our clients needs.

LEGAL NOTE: This information is published gratis and is the view of Dead Famous Ltd. whose interpretation must not be relied upon in a court of law. Clients are advised to obtain independent legal advice before entering into any contract concerning the use of a copyright image of a deceased celebrity. Dead Famous Ltd. have a selection of specialist lawyers who can advise clients on all aspects of international copyright and publishing law.