Michael Crichton, known for creating “ER” and authoring “Jurassic Park,” passed away in 2008. His estate is now taking legal action against Warner Bros. The reason lies in a contract clause: when Crichton developed “ER,” he reserved the right to approve or reject any sequels. That right did not expire with him. As Warner Bros. is producing “The Pitt,” a new medical drama, Crichton’s estate argues that it’s a mere reboot of “ER,” despite Warner’s denial of these claims. This lawsuit is the latest in a series of significant legal battles aimed at safeguarding the legacy of deceased creative individuals. Artists can maintain some influence over their work posthumously. As law professors focusing on trusts and estates, we track these cases to educate our students on how creative individuals can protect their legacies. We’re particularly interested in several celebrity cases, which highlight the complexities involved in safeguarding artistic legacies, especially with the rise of artificial intelligence.
Typically, when creators sell a film or TV project, the buyer aims to secure rights to create sequels, remakes, and spinoffs, maximizing potential earnings from the original intellectual property. Crichton, however, wielded significant industry influence, allowing him to negotiate beneficial contracts for his well-known projects. In 1994, he secured a contract with Warner Bros. for “ER,” resulting in a 331-episode series generating over $3.5 billion in revenue. Due to Crichton’s influence, the contract included a unique frozen rights clause, requiring his consent for any derivative works by Warner Bros. This clause survived his passing. On August 27, 2024, following Warner’s announcement of a new medical drama featuring Noah Wyle from “ER,” Crichton’s widow filed a lawsuit, invoking the frozen rights clause, labeling “The Pitt” an unauthorized reboot. Copyright law grants creators exclusive rights to their work for their lifetime plus 70 years. After the creator’s death, their estate can enforce these rights. Recently, Isaac Hayes’ estate protested the use of his song “Hold On, I’m Comin’” by Donald Trump’s campaign.
A lawsuit filed on August 21, 2024, contended the song was “unlawfully performed” 133 times since 2020, including at the 2024 Republican National Convention. The estate demanded Trump cease using the song and sought $3 million in royalties. On September 4, a judge sided with the estate preliminarily. This Hayes case underscores the importance of copyright protection and the role of music in the 2024 presidential race, as Hayes’ estate was not alone in its objections to Trump’s music use. Another case involved “Vultures 1,” a collaborative album by Ye (formerly Kanye West) and Ty Dolla Sign. Donna Summer’s estate alleged the album included an unauthorized use of her 1977 hit “I Feel Love.” Despite rejecting a license request due to West’s contentious history, West and Dolla Sign allegedly recreated significant parts of Summer’s song for their hook, releasing it publicly without permission. The parties reached a settlement in June 2024, with Summer’s estate’s lawyer stating that it didn’t include permission to use the song.
Publicity rights allow individuals to control the commercial use of their identity post-mortem, with about 20 states extending this right beyond death. Tennessee recently enhanced protections, including against unauthorized AI use, under the ELVIS act. In early 2024, George Carlin’s estate sued “The Dudesy” podcast creators for infringing on his publicity rights through an AI-generated episode titled “George Carlin Resurrected.” Utilizing a deepfake image and an AI-generated voice resembling Carlin to perform a script in his comedic style, the estate settled in April 2024, requiring removal of the content and discontinuance of Carlin’s likeness without consent. Another noteworthy situation illustrates how estate planning influences the use of publicity rights after a celebrity’s death.
When Little Richard passed in 2020, a will provision granted valuable intellectual property rights to nine individuals, urging cooperation on managing his posthumous rights. Any interference could result in forfeiture of rights to financial gains. Richard’s brother, Peyton Penniman, objected to a sale in communication with a prospective buyer, resulting in the buyer withdrawing. Recently, a Tennessee court determined Peyton’s actions adversely affected the estate, causing him to forfeit his rights. Posthumous control of copyrights and the profit from a deceased celebrity’s image has broad implications for their legacy, signifying that they may continue to influence what is seen and heard even after death.