Says the Texas Statutory Right of Publicity: “I Look Just Like Buddy Holly”

Connor Frankhouser, Contributing Member 2023-2024

Intellectual Property and Computer Law Journal

I. Introduction

Buddy Holly, born Charles Hardin Holley in Lubbock, Texas in 1936 was a pivotal figure in early rock ‘n’ roll history.[1] His music was hugely influential to the likes of Bob Dylan, Bruce Springsteen, Eric Clapton, The Rolling Stones, and The Beatles.[2]

Buddy tragically died in a four-person plane accident on February 3^rd, 1959, near Clear Lake, Iowa.[3] There were no survivors.[4] Also on the fatal plane ride with Buddy were Ritchie Valens and “The Big Bopper” J.P. Richardson, both famous musicians with their own popular music.[5] This event would be immortalized as “The Day the Music Died” after singer-songwriter Don McLean referred to it as such in his 1971 number-one hit song “American Pie.”[6]

The right of publicity refers to the right to control how one’s identity is exploited commercially.[7] Presently, it is known by the popular acronym “NIL,” which stands for name, image, and likeness.[8] NIL is only a small, but integral part of the intellectual property law puzzle commonly comprised of copyrights and trademarks.[9] Although NIL is often conflated with these more commonly known concepts in intellectual property, it is distinct from them.[10] The right of publicity arises under state law and guards against the unauthorized use of commercial attributes such as the name, voice, signature, or likeness of celebrities, often in a commercial endorsement context.[11]

Using name, image, and likeness of famous celebrities to market goods dates back to the mid-18^th century and is a lucrative industry since the identities of celebrities have an extremely high commercial value.[12] The right to publicity was not identified or litigated until the latter half of the 20^th century, when Judge Jerome N. Frank of the 2nd Circuit coined the term in Haelean Laboratories, Inc. v. Topps Chewing Gum, Inc. in 1953.[13]

The right of publicity is separate from copyright, which is the right that arises from any original works of authorship fixed in any tangible medium of expression.[14] Rather, the right of publicity is a right to protect the names and likenesses of celebrities against unauthorized use, in both commercial and non-commercial purposes.[15] The right of public publicity seeks to protect the name, image, and likenesses of celebrities’ identity.[16] The Supreme Court has only heard a single case on the right to privacy and how it operates with the First Amendment, doing so in Zacchini v. Scripps-Howard Broadcasting Co.[17] In Zacchini, Hugo Zacchini–a daredevil performer specializing in human cannonball routines–objected to a local news station airing his entire fifteen-second human cannonball act and ultimately sued the parent company of the local news outlet that televised his performance.[18] The Supreme Court held that Zacchini’s “economic incentive. . . to make the investment required to produce a performance of interest to the public” outweighed the First Amendment defense proffered by the Scripps-Howard broadcasting company.[19]  

Justice White, writing for the court in Zacchini enshrined a right to publicity and opined that there is an interest in protecting the “…economic incentive for [a public figure] to make the investment required to produce a performance of interest to the public.”[20] By using language that is reminiscent of copyright and patent law,[21] the right of publicity was put on the same level of constitutional protection as copyright law, ultimately allowing celebrities “a powerful shield to blunt what blows the First Amendment might strike against it.”[22]

This article examines how the estate of Buddy Holly influenced the right of publicity laws in his home state of Texas. Part II examines how protections for the posthumous right of publicity arose in California and how these posthumous rights on the exploitation of NIL were influential on Texas laws. Part III examines the implications of a lack of federal right of publicity laws in an increasingly connected and media-centric world.

II. Background

Only two years after the right to publicity was created, Lugosi v. Universal Pictures questioned if the right to publicity terminated upon the death of an individual with a commercially exploitable likeness. Lugosi involved the fight by Bella Lugosi’s estate to obtain a share in Universal Studios’ profits when the studio licensed Lugosi’s image as the famous Count Dracula character. Ultimately, the California Supreme Court held that the right to exploit the name and likeness is “…personal to the artist and must be exploited, if at all, by [them] during their lifetime.”[23] Essentially, California ruled that right of publicity could not be inherited.[24] However, the court implied that the decision may have been different if Lugosi had exercised his right to publicity through assignment in his estate.[25] Since no such right was ever exercised, Lugosi’s name and likeness passed into the public domain upon his death.[26]

To mitigate the effects of the Lugosi decision, California state senator William Campbell authored S.B. 613 in 1983.[27] Senator Campbell’s bill led to the eventual enactment of California Civil Code § 990 to protect the rights of the deceased whose identities had commercial value at the time of their death.[28] This protection extended for a period of fifty years after the date of death and permitted the right of publicity to be “exercised or enforced by the heirs of that person to the same extent that it could have been exercised by that person during that person’s lifetime.”[29] The duration of posthumous right of publicity protection in California was extended to seventy years by the so-called “Astaire Amendments” of 1999.[30]

Support for the bill was comprised of the heirs and representatives of deceased celebrities and the Screen Actors Guild.[31] It was unsurprising that several film and television studios, along with the Motion Picture Association of America, vociferously argued against the passage of the bill.[32] One studio went so far as to argue that “a new frontier of liability” would be created by changing what was once “a purely personal right” into “an inheritable property right.”[33] 

III. Discussion

The State-Specific Right of Publicity Now Extends to Texas and Beyond

During this same period in the 1980s when Senator Campbell was working to protect the rights of the deceased whose identities had commercial value at the time of their death, the state of Texas had no restrictions on the use of names and pictures of deceased famous persons.[34] Since Buddy Holly died intestate, it was up to his widow, Maria Elena, to fend off a litany of businesses (from pizzerias to used car lots) that were using Buddy’s likeness to sell their wares.[35]

Maria Elena Holly lobbied Texas State Representative Al Granoff, of the Dallas region, to introduce a bill modeled after then–recently passed California Civil Code § 990.[36] The Texas version of California Civil Code § 990–which was signed into law on May 22, 1987–was quickly dubbed the ‘Buddy Holly Bill’ by the press.[37]

The Buddy Holly Bill, enacted as Title 4, Chapter 26 of the Texas Property Code,  protects a person whose identity has commercial value at the time of their death; this protection lasts fifty years after the death of the individual.[38] Specifically, Chapter 26 protects name, voice, signature, photograph, and likeness, and has detailed provisions for damages arising under the act.[39]

Today, twenty-four states have posthumous right of publicity statutes.[40] Interestingly, Indiana–not California–is regarded as having the most robust posthumous right of publicity laws and is by far the most plaintiff-friendly jurisdiction for right of publicity claims.[41]

The patchwork of state laws governing right of publicity and their ensuing confusing nature have been noted by legal scholars and government watchdogs alike.[42] In 1998, the American Bar Association drafted a proposed national right of publicity bill at the behest of the American Trademark Association.[43]

Of course, the proposed bill was a mere thought experiment, and it remains so now. Twenty-five years later, the patchwork of state laws surrounding the right to publicity remains. Some states allow inheritability of the right of publicity while some states do not, and many states do not recognize the right of publicity at all. This issue is compounded by the fact that advertising in the internet age is done on a nationwide scale. Therefore, a substantial choice of law dilemma exists wherein rights-holders who wish for their message to spread as far across the nation as possible are forced to “comply with the laws of the market that imposes the greatest restrictions.”[44] This inconsistency in law then leads to needlessly complex litigation and increased transaction costs.[45]

Artificial Intelligence and the Need for a Potential Federal Right of Publicity Statute

With the recent proliferation of Artificial Intelligence (“AI”) and the ability of  AI programs to mimic both the voice and likeness of famous persons and artists, there have been renewed conversations from inside the legislative branch itself to enshrine a federal right of publicity statue to protect film and television actors, along with musical artists.[46]

It is likely that such a federal right of publicity statute would have grounding in the Commerce Clause and that such right of publicity legislation would also have a provision carved out to allow for fair use defenses, just like the Copyright Act and the Lanham Act.[47] Regardless of whether a federal right of publicity statue is forthcoming, entities such as Google and Universal Music are already in discussions to license artists’ melodies and voices for use in AI-generated songs.[48] It is not a huge leap to see how this may portend a return to a pre-Lugosi status quo where it was the publishers and studios–not the talent–who were in the driver’s seat concerning the ability to exercise publicity rights.

IV. Conclusion

Maria Elena Holly–once derided as the “Spanish Yoko Ono” for her vigilant administration of Buddy Holly’s estate–has been instrumental in ensuring other iconic Texas artists–such as Selena–have their rights to publicity protected by giving their estates legal grounds to protect the likeness of the deceased stars.[49] Maria Elena also helped Buddy obtain a posthumous record deal consistent with what contemporary stars today earn.[50] Ironically, Maria Elena was, in fact, an acquittance and advisor to Yoko Ono, serving as a guide for the latter in her administration of John Lennon’s estate.[51]

Maria Elena–along with her counsel–has successfully guarded the estate and music of Buddy Holly, and ensured his work will be heard and his legacy secured. In 2016, Maria Elena entrusted BMG Music Publishing with Buddy’s legacy and sold the entirety of the Buddy Holly Estate’s intellectual property rights, including music publishing, master recording rights, trademarks, publicity and life story, and other ancillary rights.[52]

One thing that has not been resolved is a federal right of publicity statute. In a multi-media world where expressive works and advertisements are increasingly disseminated on a national–if not international–basis, the time is ripe for the passage for a federal act that gets rid of the piecemeal state-by-state patchwork of laws. With the competing interests at stake blocking federal laws, the reality is as Buddy Holly once sang, “that’ll be the day.”[53]

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* A note from the author: This article is dedicated to the memory of my grandfather, John Frankhouser, who once owned KLLL-FM, a Lubbock radio station that was a notable creative outlet and stage for Buddy in his formative years. My grandfather helped inculcate a love of Buddy Holly, music, and the arts in all of his children and grandchildren- and for that I am always grateful.

[1] Samuel J. Ayers, Buddy Holly: A Legacy of Music 24-25 (Hermosa Creations 1999).

[2] ‘Our Songs Are Alive:’ Listen to Extracts of Bob Dylan’s Nobel Prize Lecture, NBC News (June 6, 2017), https://www.nbcnews.com/video/bob-dylan-delivers-lecture-for-nobel-prize-and-lauds-buddy-holly-961005635784.

[3] Ayers, supra note 1, at 29.

[4] Id.

[5] Ritchie Valens, Billboard Music Chart, https://www.billboard.com/artist/ritchie-valens/ (last visited Oct. 17, 2023).

[6] The Day Music Died: The Story of Don McLean’s American Pie (MTV Studios 2022).

[7]  J. Faber, An Abridged History of the Right of Publicity, Right of Publicity, https://rightofpublicity.com/brief-history-of-rop (last visited Dec. 8, 2023).

[8] Interview with Stephen J Easley, Vice President for Government Affairs and General Counsel at F2 Technologies, LLC (Oct. 19, 2023).

[9] Id.

[10] Faber, supra note 7.

[11] Bela G. Lugosi, California Expands the Statutory Right of Publicity for Deceased Celebrities While Its Courts Are Examining the First Amendment Limitations of That Statute, 10, DePaul L.J. 259, 261 (2000).

[12] Mohan Dewan, With Great Popularity Comes Great Responsibility, Am. Intell. Prop. Law Ass’n, https://www.aipla.org/list/innovate-articles/with-great-popularity-comes-great-responsibility (last visited Dec. 8, 2023).

[13] Lugosi, supra note 11, at 261.

[14] U.S.C. §102(a).

[15] John R. Vile, Right of Publicity, Free Speech Ctr. (Feb. 18, 2024), http://firstamendment.mtsu.edu/article/right-of-publicity.

[16] Id.

[17] Eric E. Johnson, Disentangling the Right of Publicity, 111 Nw. U. L. Rev. 891 (2017); Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).

[18] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).

[19] Id. at 576.

[20] Id.

[21] Faber, supra note 7.

[22] Johnson supra note 17, at 914.

[23] Lugosi v. Universal Pictures, 603 P.2d 425, 428 (Cal. 1979).

[24] Cal. Civ. Code § 3344.1.

[25] Lugosi, 603 P.2d 425 at 431.

[26] Id.

[27] Douglass E. Mirell, Right-of-Publicity Statutes: Some Historical Reflections and Recent Developments, Communications Lawyer, 15, 17 (2010), https://www.greenbergglusker.com/douglas-e-mirell/insights/page/4/.

[28] Id.

[29] Id.

[30] Cal. Civ. Code § 990(h); Cal. Civ. Code § 3344.1.

[31] Mirell, supra note 27, at 2.

[32] Id.

[33] Id.

[34] Joe Nick Patoski, The Widow’s Peak, Tex. Monthly Archives (Feb. 2001), https://www.texasmonthly.com/articles/the-widows-pique/.

[35] Interview with Stephen J. Easley, supra note 8; Pop/Rock, L.A. Times Archives (March 13, 1987), https://www.latimes.com/archives/la-xpm-1987-03-13-ca-5547-story.html.

[36] Patoski, supra note 34.

[37] Michael B. Cohen, Who Do The Heirs of Buxom Barmaid and Buddy Holly Have in Common, Dallas Elder Lawyer, https://dallaselderlawyer.com/what-do-the-heirs-of-a-buxom-barmaid-and-buddy-holly-have-in-common/ (last visited Dec. 8, 2023).

[38] Tex. Prop. Code Ann. §§ 24A.001 – 24A.006 (West 2024).

[39] Id.

[40] J. Faber, Right of Publicity Statutes & Interactive Map, Right of Publicity, https://rightofpublicity.com/statutes (last visited Dec. 8, 2023) .

[41]Kevin L. Vick, Why a Federal Right of Publicity Statute is Necessary, Am. Bar Ass’n (Aug. 2011), http://americanbar.org/why_federal_right_publicty_statute_is_neccesary.

[42] Mark Roesler, What’s in a Name, Likeness, and Image? The Case for a Federal Right of Publicity Law, Am. Bar Ass’n (Sept. 16, 2020), https://www.americanbar.org/groups/intellectual_property_law/publications/what-s-in-a-name-likeness-image-case-for-federal-right-of-publicity-law/.

[43] Id.

[44] Mary LaFrance, Choice of Law and the Right of Publicity: Rethinking the Domicile Rule, 37 Cardozo Arts & Ent. LJ 1 (2019).

[45] Roesler, supra note 42.

[46] Christopher T. Zirpoli, Artificial Intelligence Prompts Renewed Consideration for a Federal Right of Publicity, Cong. Rsch. Services (Jan. 29, 2024), https://www.congress.gov/crs-product/LSB11052.

[47] Id.

[48] Id.

[49] Patoski, supra note 34.

[50] Interview with Stephen J Easley, supra note 8.

[51] Id.

[52] Id.

[53] Buddy Holly, That’ll Be The Day (Decca 1957).