The article below was originally published by the Northwest Arkansas Business Journal on Monday, January 19, 2015 and features Meredith Lowry, one of partners. The article and its contents are the property of Gray Matters, LLC and is republished here with its permission. The original article can be accessed by clicking the link below.
by Paul Gatling
Legislation advocated by the family of Frank Broyles could soon make Arkansas the latest state to have a law that helps protect the commercial value of a person’s identity, even after they die.
The bipartisan bill, known as the Personal Rights Protection Act, will be filed by Sen. Jon Woods (R-Springdale) in the 90th General Assembly, which convened Jan. 12 in Little Rock. Rep. Greg Leding (D-Fayetteville) is a co-sponsor.
If passed, it will establish the state’s statutory “Right of Publicity,” giving a person the right to control the commercial use of his or her persona and recover damages in court for violations of that right.
That right can then be licensed through the Arkansas Secretary of State’s office and inherited by an individual’s family, for a period of 10 years or longer after death.
“It’s a bill that needs to be passed,” Woods said. “And I think everybody will be on board with it. It’s really interesting and I think lawmakers are going to enjoy having a discussion about it.”
If the bill passes, it will likely take effect in July.
A Marketable Identity
Arkansas certainly isn’t known as a hotbed for famous personalities. But it can be argued that Broyles, the longtime football coach and administrator at the University of Arkansas, is in the category of celebrity. He is certainly someone with a marketable identity.
For 56 years he was associated with the Razorbacks, but his official involvement with the school ended June 30 when he retired from the Razorback Foundation, the private fundraising arm of the UA athletics department. He had been working there for seven years since retiring as athletic director in 2007.
Because of that link with the UA, the use of Broyles’ persona for commercial purposes was not allowed.
That is no longer the case, and it could potentially allow opportunists to capitalize on Broyles’ name or likeness to further their own business interests via advertising, promotions or implied endorsements.
Hank Broyles, one of Broyles’ six children, said it’s important that the family take precautionary action, which is what led them last fall to Meredith Lowry, a partner at Fayetteville firm Smith Hurst and one of the top intellectual property lawyers in the state.
“It’d be a lot easier for us if we had some legislation to back us up and allow us to protect dad after he’s dead,” Broyles said. “And other people besides us would probably like to have [legislation] as well.”
Broyles said there have been a number of instances where his father’s friends have used Broyles’ image or endorsement for their companies.
At Frank Broyles’ request, there wasn’t much concern about those occurrences because they were friends, but other instances in the future might not be as harmless.
“As you get older, if you’re mean you get meaner, and if you’re nice you get nicer,” Hank Broyles said. “Dad just gets nicer and he doesn’t mind anything that doesn’t look bad on him and is helping his friends.
“But he wants to be sure that he wouldn’t have his picture used in association with something he did not support in his lifetime. We don’t know that would ever happen, but if it did we’d be protected.”
Similar to Tennessee
Lowry said although common law right of publicity usually protects all persons regardless of celebrity, the interest of celebrities and other public figures in protecting their fame has led to a greater interest in legal statutory protection.
“Within the last 60 years it has generated momentum, even more so the last decade,” she said.
Lowry said there are about 20 states that have adopted statutes that protect publicity rights. Roughly 13 more have some version of a common law right.
Tennessee has a similar statute to the one proposed in Arkansas. Soon after the death of Elvis Presley, various memorabilia manufacturers began profiting off of the death by distributing posters of Elvis.
The Elvis estate sued to prevent the activities, but lost because there was not a law at the time that allowed for a descendible right of publicity. Soon after that, Tennessee adopted its statute.
Broyles isn’t the global icon that Elvis was, but he is a king to plenty of people in Arkansas — plenty of people who would no doubt like to profit from his name after his death.
“There’s always a rush to commercialization,” Lowry said. “You don’t want to see a Frank Broyles T-shirt go up for sale on Facebook when the family is grieving. We’re trying to keep that from happening. And not just for Coach Broyles. For anybody.”