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Salinger’s bill: It goes way too far
A well-intentioned bill written to protect the estate of the late author J.D. Salinger would wind up silencing journalists, artists and even average citizens if the Senate version is replaced by one offered by the House Commerce and Consumer Affairs Committee.
Senate Bill 175 was written at the request of Salinger’s surviving family after the famous author died in 2010. It would codify any Granite Stater’s “right to publicity” by prohibiting “the commercial use of his or her identity” for 70 years after death without the prior, written permission of the individual who died or his or her family or legal heirs.
Such protections have some obvious appeal. But here is the catch. The Senate recognized that there should be exceptions for journalism, art, commentary, documentary works and other forms of reporting and expression. The House Commerce and Consumer Affairs Committee removed all of the Senate’s exemptions, leaving only a short phrase, “subject to limitations imposed by the New Hampshire constitution and the United States Constitution.”
What, exactly, does that mean? It means the bill would create a thriving business for lawyers. If a deceased person’s “identity” — a word the bill does not define — is used in a way that could be called commercial, lawyers could threaten to sue to stop it. It would chill or end perfectly legal and legitimate activities that do not exploit anyone, as the exception is far too vague.
For instance, a sports memorabilia show could not feature in an advertisement any baseball card that shows a deceased player from New Hampshire. (Would the sale of that baseball card even be legal?) Could a newspaper reprint commemorative editions, as they would be filled with the identities of deceased Granite Staters? Could antique dealers sell photographs of dead Granite Staters? Probably not. The bill even could be held to prohibit the sale of any painting or other work of art depicting a deceased Granite Stater.
The House committee amendment strips important protections for expressive work that must be reinstated.
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