Alas, Poor George
by Dar ul Harb, Esq.
Last week, the family of Minneapolis’ most celebrated felon, the late George Floyd, threatened to sue rapper/fashion mogul Ye (formerly Kanye West) for $250 million for disparaging his “legacy” by claiming that Floyd died of a drug overdose instead of being killed by the police.1 One of the law firms representing the Floyd family sent Ye’s attorneys a cease-and-desist letter2 threatening legal action. This threat raises the peculiar legal question of whether and what sort of a defamation case can be brought by the estate of a dead man.
(photo illustration by yours truly of Ye as Hamlet)
Under the common law, the legal heritage which we inherited from Great Britain, no lawsuit survived the death of a party to the case, and the case was said to be “abated” by their death. If a case involved property, for example, which has an independent existence from the deceased owner, the case might be pursued by the deceased’s successor in interest (such as their heir), but that would be a new lawsuit, once the successor got control of the property. However, lawsuits involving harms to the person of the deceased, or which sought damages due to harm caused by someone who has died, were considered beyond the reach of law to remedy, and those causes of action died with them.
“[O]ne cannot defame the dead…” tweeted Lee Merritt,3 one of several lawyers representing members of the Floyd family, but there are reportedly other legal theories besides defamation the family might pursue.
Most states now have what are known as “survival statutes” which permit lawsuits to be maintained by a plaintiff’s estate for physical injuries sustained by someone who later dies, just as they could have sued on their own behalf prior to their death. But as Mr. Merritt admits, you can’t sue for defamation on behalf of a person who’s dead. Dead men not only tell no tales, they also don’t hear any insults.
However, since the mid-20th century, U.S. law began to recognize the property interests of people in what are known as “rights of publicity,” their name, likeness, voice, public persona, etc., as an extension of the previously recognized “right to privacy.” Said to have originated with a 1953 case involving the rights of baseball players to sign exclusive agreements for their likeness to appear on collectable baseball cards, the “right of publicity” concept has been extended by laws in some states (including my home state of Tennessee) to be a property right which can be passed down to one’s heirs, and which can continue to generate revenue for an estate long after the person from whom the publicity rights were inherited is dead.4
Recent stories about actor Bruce Willis, who retired this year due to his aphasia diagnosis making it difficult for him to remember his lines, and 91-year-old actor James Earl Jones, who’ve both had aspects of their persona digitized to create new virtual performances, suggest that the rights of publicity for celebrities will be increasingly important in the future.
In Minneapolis, Minnesota, where George Floyd lived (and died) after getting out of prison in Texas, the untimely death in 2016 of R&B star Prince left his estate in a similar situation to that which the heirs of Elvis had faced almost 40 years earlier in Tennessee, because the state of Minnesota did not have a “right of publicity” law to clarify what happened to the image and personality rights that “the Purple One” had developed during his lifetime. A bill, somewhat cringily titled “Personal Rights In Names Can Endure” or the “PRINCE act,” was introduced in the Minnesota 2016 legislative session, but was withdrawn by its sponsor after criticism of its breadth.
I’ve found no reporting that the bill has been subsequently reintroduced or enacted into law, so Minnesota could remain one of the states where the rights of publicity do not survive the death of their originator.5 However, the U.S. District Court for the District of Minnesota in a 2017 case concerning some Prince recordings bootlegged by a former sound engineer for The Artist6, found that the right of publicity “under Minnesota common law is descendible and enforceable by the decedent's estate," at least for purposes of ruling on a preliminary motion in the case.
Does George Floyd’s “legacy” include an enforceable right of publicity in Minnesota that would be damaged by Ye’s comments, and deprive his relatives of profits from his name and likeness as a newly-minted civil rights icon?7 TMZ reports that Floyd’s brother, who’s represented by the earlier-mentioned attorney Lee Merritt, has decided not to sue, supposedly because the offending comments have been taken down by the podcast which published them originally. The other members of the Floyd family may well continue to pursue what seems to be an extraordinarily difficult case to win, given the state of the law in Minnesota.
However, a 1996 case in the U.S. Sixth Circuit (where Tennessee is), made an interesting argument for the survival of a defamation case where the victim of the defamation had died. Basically, the idea is that "survival statutes" allowing claims for personal physical injuries to survive the death of a plaintiff, while not allowing claims for reputational injuries, like slander or libel, to survive, violate equal protection of the law. So as the law continues to evolve, it may someday be legally hazardous to speak ill of the dead.8
—end—
George Floyd served 5 years in a Texas prison for aggravated robbery with a deadly weapon, as previously detailed by the UK Daily Mail.
Link courtesy TMZ.
After Elvis Presley’s death in 1977, there was much litigation in which the Presley estate tried to assert control over the late singer’s image and likeness, culminating in the estate lobbying the Tennessee General Assembly for a law called the Tennessee Personal Rights Protection Act of 1984 (Tenn. Code Ann. §47-25-1101, et seq.) which provides for the right of publicity to continue for at least ten years following a person’s death, and indefinitely thereafter so long as the holder of the rights continues to use them commercially at least every two years.
Famously (to entertainment lawyers at least), the publicity rights of blonde bombshell Marilyn Monroe expired with her death, because she was found to have legally been a resident of the state of New York, effectively leaving her persona in the public domain.
Originally named Prince Rogers Nelson.
It’s not like George Floyd had much of a reputation to harm, quite frankly. Ye’s comments may also simply represent a difference of opinion about the cause of Floyd’s death, rather than actionable defamation. Floyd’s estate suing for slander would be like O.J. Simpson suing someone who claimed he murdered his wife, despite his being acquitted in his criminal trial. Truth remains an absolute defense to defamation.
And… Happy Halloween!