Swanky Conservative

Is it illegal to use a dead person’s name without their family’s consent? That’s the question at hand right now in legal battles in Arizona and here in Austin. Two separate artists, both opposed to the war in Iraq, are using the names of the fallen servicemen to create antiwar art. This past Tuesday, Texas governor Rick Perry signed into law a measure that makes it illegal for anyone to use the name of a fallen serviceman commercially without the consent of a surviving relative. Oklahoma, Arizona, Florida and Louisiana also have the same type of law.

It seems there are a few areas converging here: political speech and art, two areas protected under the First Amendment, and the right to privacy and the right of an individual to his or her own publicity. Free speech is spelled out in the Constitution of the United States, where rights of privacy and publicity are not.

The state will have to make the case that a family and an individual are afforded rights of privacy that supersede the artists’ rights to free speech. Every case I can find that deals with artists’ use of someone’s likeness or name centers around the use of celebrities. If you think of a name as a trademark, there are laws that protect trademarks from being used in ways that can cause confusion around the label. I don’t know if the state could make the case that a person’s name is in effect a trademark.

It will be interesting to watch. My own take, being a sailor, I would never want my name used in any way counter to the wishes of my family. I would hope the artists would be able to be a bit more creative and could express their ideas without resorting to using dead servicemen’s names, even when some of the families have asked them not to.