Inheritable privacy protection for dead people: bad idea

Friday, June 15, 2012

Should you have privacy rights when you’re dead?

No, Gov. John Lynch rightly said this week.

Lynch vetoed a bill that would have granted a person’s heirs the right to control the commercial use of his or her identity for 70 years. The legislation arose at the request of Matt Salinger, son of the late, much-beloved author J.D. Salinger, whose books The Catcher in the Rye, Franny and Zooey, Nine Stories and others continue to sell millions of copies.

The famously reclusive Salinger lived in virtually undisturbed privacy in a small town in New Hampshire until his death in 2010. Matt sought to extend his father’s privacy beyond the grave, saying that’s the way the acclaimed writer would have wanted it.

“He basically wanted to be left alone and do his work,” Matt told the press. “He wanted his privacy.” Matt said his father moved to New Hampshire in part because of the state motto, “Live Free or Die.”

Notice that it doesn’t say, “Live Free AND Die.” Your death ends your privacy interest, because you can no longer observe, feel or object to any supposed invasion of it. Death is the ultimate privacy; it gives you all you could want and then some. As the 17th century English poet Andrew Marvell wrote in “To His Coy Mistress”:

The grave’s a fine and private place,
But none, I think, do there embrace.

Whatever the afterlife may be, all available evidence suggests that J.D. Salinger is unaffected when his photograph appears on a coffee mug, which is the sort of commercial use his son claims to find intolerable.

Matt even found the official publicity photo released by J.D. Salinger’s publisher objectionable. As with all photographs of himself, J.D. “didn’t want any of them out there,” Matt said. Then J.D. shouldn’t have sat for a picture that ran thousands of times in newspapers for decades.

Among other arguments Matt made in promoting S.B. 175 in the state Legislature was this: “[J.D. Salinger] believed that nothing should stand in between the reader of a work of fiction and the fictional characters.”

Interesting notion. But it lies in the realm of literary criticism, which cannot be legislated. Should an artist, or an artist’s heirs, dictate to the rest of us how we are to appreciate his work? Certainly not.

But there’s more, and here’s the deepest problem with the bill: Exemptions for journalistic and entertainment productions were stripped out. That means expression that’s normally protected — books, news stories, plays, movies — would have lost its protection to inheritable image-control. Without specific safeguards, the measure would have had “a chilling effect on legitimate journalistic and expressive works that are protected by the New Hampshire and United States constitutions,” Lynch said in his veto message.

There’s a chance the Legislature could override Lynch’s veto later this month. If it does, then could a painter be sued for an oil portrait of the great writer? Could no TV special be made about him without negotiations with his family? Would any future biographies have to be authorized, expunged of anything unflattering to Salinger’s image? (Editor’s note: The veto was upheld.)

We don’t want to go down that road. Sadly, we already have, but at least not through legislative fiat. Families of other famous dead people, including Martin Luther King Jr. and Elvis Presley, have tried, with varying legal success, to impose similar restrictions on posthumous use of their loved ones’ images through the use of trademarks. That’s an absurd thing to do to a historical figure, and to all of us interested in that person’s accomplishments.

Whatever J.D Salinger wanted for himself in life, we don’t need a trail of lawsuits stretching from here to eternity over how we can portray him now that he’s gone.

Related: 2nd Circuit: Author likely to lose Catcher in the Rye fight

Tags: ,