Naomi Cahn, University of Virginia and Reid Kress Weisbord, Rutgers University – Newark
Michael Crichton, the creator of “ER” and author of “Jurassic Park,” died in 2008. So why is his estate suing Warner Bros. now?
It turns out that when Crichton agreed to develop the “ER” series, he kept the right to approve – or not approve – of any sequels. That right didn’t die with him.
Now that Warner is developing a new medical drama series, “The Pitt,” Crichton’s estate is claiming that the new show is simply a reboot of “ER.” Although the new show has some similarities, including some of the same actors, Warner denies all the allegations.
The dispute is the most recent in a series of high-profile legal cases brought to protect the legacy of a now-dead creative artist. And yes, even after death, artists can retain some control over their work.
As law professors who teach about trusts and estates, we’re following these cases so we can teach our students how authors, artists and other creative people can preserve their legacies.
We’re particularly interested in three situations featuring celebrities, because they show how complicated it is to protect artists – especially in the age of artificial intelligence.
Contracts offer lasting control
When a creator sells a film or TV project, the buyer usually seeks to acquire rights to produce sequels, remakes and spinoffs associated with the original intellectual property. Selling so-called derivative rights can allow the creator to maximize the sale price and the buyer to exploit the creative idea to the fullest extent.
Crichton, however, had so much industry clout that he was able to negotiate more favorable contracts for some of his most famous projects. In 1994, for example, Crichton signed a contract with Warner Bros. that led to the production of the NBC medical drama “ER,” which enjoyed a 331-episode run while generating more than US$3.5 billion in revenue.
Because of Crichton’s stature, he won a rarely granted frozen rights provision requiring his consent for Warner Bros. to produce any “sequels, remakes, spin-offs and/or other derivative works.”
That frozen rights contract survived his death, as do contractual rights generally. So, on Aug. 27, 2024, following Warner Bros.’ recently announced production of a new medical drama starring ER’s original lead, Noah Wyle, Crichton’s widow filed a lawsuit that invoked the frozen rights clause to challenge “The Pitt” as an unauthorized reboot.
Copyright protection endures after death
A copyright grants exclusive rights to the creator of a work authorship for the life of the author plus 70 more years. After the author dies, the copyright may be enforced by their estate.
Recently, for instance, the estate of Isaac Hayes objected to the use of the late songwriter’s “Hold On, I’m Comin’” by Donald Trump’s presidential campaign. According to a federal lawsuit filed on Aug. 21, 2024, the Trump campaign has “unlawfully performed” the song at least 133 times since 2020, including at the 2024 Republican National Convention.
The Hayes estate demanded that Trump stop using the song and is seeking $3 million in royalties for prior performances. On Sept. 4, the judge sided with the estate in a preliminary ruling. The Hayes dispute shows the importance of copyright protections – and also the significance of music in the 2024 presidential race, since Hayes’ estate wasn’t alone in objecting to Trump’s use of its music.
Another recent case involved “Vultures 1,” a new studio recording album collaboration between Ye – formerly known as Kanye West – and Ty Dolla Sign. According to the estate of Donna Summer, “Vultures 1” contained an “unauthorized interpolation” of Summer’s 1977 hit song “I Feel Love.” Summer died in 2012.
In a lawsuit filed in February 2024, Summer’s estate explained that it rejected a request to license the song because it “wanted no association with West’s controversial history.”
Despite that refusal, West and Dolla Sign “re-recorded almost verbatim the key, memorable portions of Summer’s iconic song, used it as the hook for their own song, and released it to the public knowing they had tried and failed to secure legal permission from its rightful owners and had no legal right to do so,” according to the complaint.
When the parties settled in June 2024, the lawyer for Summer’s estate stated publicly that the agreement didn’t include permission to license the song.
Publicity rights can protect an artist’s legacy
Publicity rights allow people to prevent the commercial use of their identity, including their name and likeness, without that person’s consent. About 20 states protect that right after death. Tennessee just extended its protections to prevent unauthorized use of an individual’s voice and AI applications with the so-called ELVIS act. It is the first state to do so.
In early 2024, the estate of comedian George Carlin sued creators of The “Dudesy” podcast for violating his publicity rights by releasing an AI-generated episode titled “George Carlin Resurrected.”
Carlin has been dead for more than 15 years. Social media marketing teased a deepfake image of Carlin to promote an hourlong video titled “George Carlin: I’m Glad I’m Dead (2024).” According to the complaint, the video “used an AI-generated sound-alike of George Carlin to read out and perform an AI-generated script written in Carlin’s style of humor.”
The estate reached a settlement in April 2024 that called for the podcasters to “permanently remove” the video from the internet and discontinue use of Carlin’s identity without the estate’s consent.
Another recent case shows how estate planning can play a crucial role in how beneficiaries use publicity rights after the celebrity’s death. When legendary recording artist Little Richard died in 2020, his will gave valuable intellectual property rights to nine people in a special provision that encouraged them to “cooperate among themselves … to reach an agreement” regarding his postmortem publicity rights. Once they had created a plan, any beneficiary who interfered with the plan would “forfeit” their right to any money from the plan.
Little Richard’s brother Peyton Penniman wrote a letter to the buyer who had agreed to purchase Little Richard’s publicity rights in which Peyton implied that the estate was “being robbed.” The next day, the buyer, who had tentatively agreed to a purchase price, backed out of the deal. Earlier this month, a Tennessee court held that Peyton’s actions harmed the estate, and, consequently, forfeited his rights.
Who holds copyright after death or who can profit from images of a dead celebrity has implications for the celebrity’s legacy, but it also means that, even from the grave, they may be able to control what the rest of us see and hear.
As AI allows each of us to create content, there are powerful lessons for what we can – and cannot – do in cultivating our own legacies.
Naomi Cahn, Professor of Law, University of Virginia and Reid Kress Weisbord, Distinguished Professor of Law and Judge Norma Shapiro Scholar, Rutgers University – Newark
