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- Twitter added paid checks to accounts of dead celebrities like Kobe Bryant and Anthony Bourdain.
- Necro-advertising is a marketing strategy using deceased icons to promote a brand or product.
- But using a dead person’s likeness, especially without permission, can cross legal boundaries.
Even after death, iconic celebrities including Marilyn Monroe and Bob Marley can be seen endorsing popular products, from candy bars to vacuum cleaners — and maybe Twitter Blue?
Necro-advertising strategies, which leverage celebrities’ timeless popularity long after they’ve died, play on audiences’ nostalgia rake in massive profits: Forbes reported House of Marley audio products and Marley’s Mellow Mood beverages and merchandise sales have earned the estate of Bob Marley more than $21 million since his death in 1981.
According to NPR, Marilyn Monroe’s posthumous brand has been used to endorse Coca-Cola products, Mercedes-Benz vehicles, and during a 2016 Superbowl commercial in which she morphs from an angry Willem Dafoe back to her charming self after eating a Snickers candy bar. The rights to Monroe’s likeness and intellectual property sold to Authentic Brands Group for an estimated $20-30 million in 2011, the outlet reported.
In 2013, shortly after Authentic Brands Group acquired the rights to Monroe’s image, she became a spokesperson for Chanel No. 5, Telegraph UK reported. Her official Instagram account continues to endorse Zales jewelry and JC Penny.
Authentic Brands Group, which also owns the rights to Elvis Presley and Muhammad Ali’s brands, did not immediately respond to Insider’s request for comment. The marketing group is run by Jamie Salter, the billionaire entrepreneur who co-founded Hilco Consumer Capital. Salter has no known personal connection to the estates of Monroe, Presley, or Ali.
Recent changes at Twitter indicate the tech giant may be trying its hand at a form of necro-advertising, users speculated after delebs — dead celebrities — including Kobe Bryant and Anthony Bourdain had verification check marks placed on their inactive accounts, creating the appearance that they’ve paid to subscribe to Twitter Blue.
But using a dead person’s likeness in an endorsement comes with ethical and legal questions, according to industry experts.
In California’s Civil Code 3344.1, any person who uses a deceased personality’s name, voice, signature, or likeness — in any manner — for purposes of advertising or selling products, goods, or services, without consent from the person is liable for $750, or the amount of actual damages sustained, whichever is greater.
Federally, the Lanham Act protects consumers against false endorsement and extends to people’s postmortem likeness as long as it can be proven that the use of the decedent’s image would “be likely to confuse as to the sponsorship or approval of a defendant’s goods,” according to the American Bar Association.
When brands run afoul of those laws, the estate of a dead celebrity can sue – and the Monroe estate has, on multiple occasions. In 2005, the estate sued to enjoin two photography agencies from using her image, but was ultimately unsuccessful. In a separate 2015 suit, Monroe’s likeness was found to be protected by the Lanham Act after a vintage collectibles licensor that was creating and marketing various products featuring Monroe was found to be using her image as a misleading endorsement.
A reputational risk
Andrew Gilden, a law professor at Willamette University College of Law, wrote in a research paper on the subject, entitled “Endorsing After Death,” that while current laws establish who has the legal right to use a decedent’s image, there few rules on how they may be depicted — leading to brand deals that may tarnish the decedent’s reputation, he said, referencing a brand deal with Monroe and Walmart as an example.
Gilden wrote that the current system of posthumous endorsement “pays little heed to the dignity of the deceased or to the desire for surviving fans to maintain emotional and psychological bonds with them.”
Indeed, users on Twitter were quick to respond — many quite negatively — at the prospect that celebrities like Boseman or Bryant would have endorsed the social media subscription service. Musk has made no public comment regarding whether the posthumous checks were part of an intentional necro-advertising campaign, or incidentally added for another reason.
Some high-profile accounts with over a million followers briefly received the Twitter Blue verified check, but their badges just as suddenly disappeared as some celebrities like Chrissy Teigen complained they had been given the checks as “punishment.”
The Twitter press email responded automatically with a poop emoji to Insider’s request for comment. Musk did not immediately respond to Insider’s requests for comment.
Gilden continued: “Only if posthumous endorsements were made more transparent, were the result of deliberate decision-making, and were entrusted to individuals closely connected to the decedent, could they constitute part of a thriving digital afterlife.”