Use of name/likeness of deceased when no heirs exist

[elfoldo]

Inspired by this story about nuns attempting to copyright Mother Teresa's name, I was wondering who can legally use the name or likeness of someone who does not have any heirs.

So until the copyright is granted, can I sell stuff like Mother Teresa bottled water, stuffed dolls, sandals, etc?

And what gives these nuns the right to copyright Mother Teresa's name versus anyone else?

[RealityChuck]

They can't copyright it; they are probably trademarking it. I'm surprised Reuters made that mistake.

You get trademark rights by claiming it, and the general rule is "first come, first served" (Do you really think Quaker Oats was ever run by the Quakers?). Since the group trademarking the name is the religious order Mother Theresa ran, it would give them some standing if someone else tried to use her name without permission, but it would be no guarantee.

Until the trademark is granted, you can use the name, but the nuns could sue over your use. They'd have a strong position, but there'd be no guarantee the judge would agree.

[Exapno Mapcase]

I see that the story says copyright, but unless the laws in India are very different than those in the U.S., what they really mean is trademark her name. You cannot copyright a name under U.S. law and I thought that mirrored what was true in other countries under the Berne Convention.

Trademarking can be done by anyone with a legitimate stake in doing so. The courts would not protect you if you tried to trademark a celebrity name but given the connection to Mother Teresa that these nuns have, they would probably be found to have a legitimate standing on the issue.

On preview I see that RealityChuck says about the same thing. I think we're both right.

[Walloon]

I'm not up on Indian probate law, but I doubt that Mother Teresa does not have any heirs. If she made out a will, she probably granted all rights to her estate to her religious order and/or charitable foundation. If she died intestate (without a valid will), she still came from a large family back in Albania and probably has numerous nieces and nephews, if not siblings, who would be in line to inherit her estate.

[zamboniracer]

On a related note, what rights do the heirs have in a deceased celebrity's likeness? Can I open a restaurant called "The Rat Pack Diner" with a newly created logo using newly drawn likenesses of Sinatra, Dean Martin, Sammy Davis Jr., etc? I imagine if I did so Frank's estate would be on my neck in about a minute, but what right would I have, assuming I had the financial wherewithal - which I don't - to fight off Frank's estate's lawyers.

[Polycarp]

She has no biological heirs. Under the standards under which people found or enter religious orders, the order proper would be the heir to her worldly goods, including intangibles like the right to trademark her name, presuming such a right exists (as it apparently does under Indian law). The heirs of Martha Brown, famed throughout Central New York for her baked bean casseroles, have trademarked her name and likeness to market Grandma Brown's Baked Beans.

[rfgdxm]

Originally Posted by elfoldo

Inspired by this story about nuns attempting to copyright Mother Teresa's name, I was wondering who can legally use the name or likeness of someone who does not have any heirs.

So until the copyright is granted, can I sell stuff like Mother Teresa bottled water, stuffed dolls, sandals, etc?

And what gives these nuns the right to copyright Mother Teresa's name versus anyone else?

Dunno about Indian law, but in the US it doesn't require ancestry to pass on legal rights. If I register as a trademark "rfgdxm" for the bottled water I sell, I can by will grant this trademark to the last woman I slept with, naming her. If "rfgdxm bottled water" is a hot commodity, she gets all legal rights, and not my relatives.

[Exapno Mapcase]

Originally Posted by zamboniracer

but what right would I have, assuming I had the financial wherewithal - which I don't - to fight off Frank's estate's lawyers.

None.

[Walloon]

Under U.S. law, one's name and likeness are considered intellectual property. You, or your estate, have the right to use them as trademarks in commercial endeavors, and to prevent unauthorized others from doing the same. Like other trademarks, it can fall into the public domain from disuse by the trademark owner, or by the trademark owner's failure to stop infringement by others.

Sheffield Enterprises, Inc., mentioned in Frank Sinatra's will, owns the commercial rights to his name and likeness.

An interesting list of rights owners.

[Walloon]

Originally Posted by Polycarp

She has no biological heirs.

Keep in mind that biological heirs include more than just one's children.

[zamboniracer]

Thanks Walloon! That was very helpful. I'll try not to annoy the good people of Sheffield Enterprises, Inc. (which is a registered corporation in Tennessee for some reason) because I know what's good for me!

I guess President Lincoln's heirs, not to mention Chief Pontiac's, were asleep at the switch and didn't protect their name or likeness properly.