A new law that will take effect in Louisiana on August 1 will protect the use of a deceased person’s likeness, preventing businesses, groups or campaigns from using a well-known Louisianan to make money without the permission of their heirs. The Louisiana Legislature passed Senate Bill 426also known as the Allen Toussaint Legacy Act, during this session and Governor John Bel Edwards recently signed it into law.
The law states that a party cannot use or exploit a person’s identity – things like their name, voice, appearance, distinctive mannerisms – for commercial purposes without their consent. A business purpose is something like selling merchandise or putting a deceased musician in a political campaign. It applies to the person during his lifetime and for 50 years after his death, except proof by an heir of non-use for three years.
“Thus, anyone who wants to invoke your identity for commercial purposes after your death should obtain the consent of your heirs”, explains Tim Kappel, a lawyer who specializes in entertainment and intellectual property law. Kappel and music industry professional reid wick were instrumental in promoting the Allen Toussaint Legacy Act.
“It’s a lot like copyright in that regard,” Kappel says. “That’s kind of the model to look at: you have copyrights while you live, but you also have copyrights after you die. The same now applies to your personality rights with respect to commercial use. After your death, it’s not a limitless situation where anyone can do whatever they want with your name, image, likeness for commercial purposes without anyone’s consent.
There are exceptions in the law: creative works, such as a tribute song or mural, are protected, as are other aspects of fair use. “The same kinds of things that would constitute fair use in the context of copyright law would also be fair use in the context of personality rights,” Kappel says.
kappel started working on the bill after Toussaint died in November 2015. Shortly after, at the New Orleans Jazz & Heritage Festival, Kappel came across a vendor selling a Toussaint koozie.
Kappel’s firm represents artists, songwriters and producers, and part of the job is to protect their name, image and likeness rights, in particular to ensure that any use reflects the values of the ‘artist. “But after you die, in Louisiana, all that protection disappears in an instant,” Kappel says.
Louisiana has laws protecting the use of images for the living, but unlike most other states, those protections don’t extend beyond death. The Allen Toussaint Inheritance Law fills this gap and brings Louisiana closer to most other places in the United States. This is especially beneficial for the families of Louisiana musicians, writers, artists and other icons.
The law was originally introduced in 2017 but only found success in the 2022 session. State Sen. Patrick McMath, R-Covington, introduced SB 426.
Interestingly, Louisiana has gone from having no protections to running the country in a way: the new law also includes a provision for “digital replicas” – an artist’s likeness digitally recreated. Hologram Tupac’s performance at Coachella 2012 comes to mind, but it could also be Fats Domino’s voice playing you over the Alexa speaker or an Ernie K-Doe CGI appearing in a commercial.
“We spend a lot of time trying to preserve this very important right, and the reason is that it is so personal to you. It’s your legacy and your image,” says Kappel. “And if that can just be preserved throughout your life and evaporate at death, that doesn’t seem to be consistent with the rights we have for our creators and musicians in that state.”