Celebrity Trademarks: Martin Luther King Jr. -- Is His Family Entitled to Fundraising Royalties?
Controversy surrounds a future Washington D.C. memorial dedicated to the late Dr. Martin Luther King Jr. The Martin Luther King Jr. National Memorial Project Foundation, a nonprofit organization, arranged the construction of the memorial and is paying for it through private fundraising efforts. The Foundation will transfer the memorial to the National Park Service upon completion. Dr. King’s descendants charged the Foundation nearly $800,000 in licensing fees for the use of his words and image in the fundraising materials.
In response to the royalties payments, critics have blasted the King family for “profiteering.” One professor even stated, “any family would be so thrilled to have their forefathers celebrated and memorialized in D.C. that it would never dawn on them to ask for a penny.”
Those criticizing the King Family fail to acknowledge they have a right of publicity. In the past, when commercial merchandisers or publishers used Dr. King’s words or image without permission, the Kings sued for their share of the income. The right of publicity is a common law doctrine, which allows an entity to charge royalties for, or prevent altogether, the commercial use of a protected name, likeness, or personality. Unlike copyrights or trademarks, the right of publicity does not expire after a certain number of years or death of the property holder. Rather, the right is descendible to the holder’s heirs and lasts as long as it is enforced.
To date, the King Family has not charged for the actual memorial because it only features public domain materials, which are not protected and can be used by anyone. The Foundation may be liable to the Kings for future fees, however, if it uses words or quotes that fall within the Family’s property rights. Some argue against this because the memorial will be given to the government, not a commercial entity. However, the King's should be permitted to charge at least a nominal fee in order to maintain their right of publicity.
