“I Thought You Died Alone, A Long Long Time Ago”: Can States Prevent The Dead From Being Commodified?

by Abriana Malfatti, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

“Whether or not a corpse is torn apart by coyotes may seem only a sentimental consideration, but of course it was more: one of the promises we make to one another is that we will try and retrieve our casualties, try not to abandon our dead to the coyotes.”¹

On September 24, 1991, Seattle was about to release its greatest musical secret upon the world ¾ it was the day on which Nirvana’s sophomore album, “Nevermind,” made its debut.² The album changed the face of music by launching grunge into the mainstream.³ A seemingly underground band became a cultural icon and the lasting voice of the outcasts and rebels of the world.⁴ However, after Kurt Cobain’s death, the world watched as friends, family, and corporations used the courtroom to tear into their idol’s legacy. The law owed Kurt Cobain more. Postmortem rights of publicity owe the dead the decency of preserving their legacy and protecting their loved ones.

This article examines the ethical concerns surrounding the postmortem right to publicity and suggests ways that state law may prevent profiteering from the dead. Part II examines current statutes and case law that explore the right to publicity. Part III argues that all states should adopt legislation that emphasizes a descendant’s pre-death values to guide postmortem property disputes. Further, all states should expand postmortem publicity rights to include symbols associated with the deceased. Additionally, states should adopt a non-domicile provision that prevents the commodification of public figures, even if the state where the celebrity was domiciled did not recognize the right to publicity. Part IV summarizes these conclusions and explains why these recommendations benefit society.

II. Background

A. The right to publicity

1. Washington Revised Code

The state of Washington defines one’s right to publicity as “[e]very individual or personality having [has] a property right in the use of his or her name, voice, signature, photograph, or likeness.”⁵ One’s right to publicity is violated when:

Any person who uses or authorizes the use of a living or deceased individual’s or personality’s name, voice, signature, photograph, or likeness, on or in goods, merchandise, or products entered into commerce in this state, or for purposes of advertising products, merchandise, goods, or services, or for purposes of fund-raising or solicitation of donations, or if any person disseminates or publishes such advertisements in this state, without written or oral, express or implied consent of the owner of the right, has infringed such right.⁶

Washington recognizes the right to publicity as transferable, allowing individuals to sell or contract their right to others.⁷ This right does not expire upon death.⁸ Instead, the right can be inherited through a will, or if one dies without a will (intestate), the right of publicity will be governed by state intestacy laws of succession.⁹ However, one’s right to publicity is not forever under the statute.¹⁰ The right to publicity only lasts 75 years after death before becoming public domain.¹¹

2. Carson v. Here’s Johnny Portable Toilets Inc.

In the case, Carson v. Here’s Johnny Portable Toilets Inc., the Sixth Circuit held that Here’s Johnny Portable Toilets Inc. violated Johnny Carson’s right to publicity when the company used Carson’s famous catchphrase without permission as both a corporate name and a brand of marketing for their product.¹² Carson sued the defendant for trademark infringement, as well as violation of both Carson’s right to privacy and his right to publicity.¹³ Carson failed in his trademark claim but succeeded in proving that the company infringed upon his right to publicity.¹⁴ The Sixth Circuit moved away from traditional concepts of likeness and focused on whether someone had knowingly used a component of the celebrity’s identity for commercial gain.¹⁵ The Sixth Circuit found that because the defendant knew the phrase was associated with Carson’s identity and then chose the phrase due to the connection, the defendant had appropriated Carson’s image.¹⁶

3. Midler v. Ford Motor Co.

In Midler v. Ford Motor Co., the Ninth Circuit held that Ford Motor Co. had infringed upon singer Bett Midler’s right to publicity when the company imitated her voice to be used in one of their commercials.¹⁷ After the commercial aired, people informed Midler that they thought she was the one singing in the commercial because of how much the voice sounded like her.¹⁸ Ford Motor Co. had permission to use the copyright to Midler’s song “Do You Want to Dance” and did not use Midler’s actual voice or her image in the commercial.¹⁹ The Ninth Circuit was then left to answer whether an imitation of one’s voice constituted a violation of their right to publicity.²⁰ The Ninth Circuit relied on the ruling in Motschnbacher v. R.J. Reynolds Tobacco Co., which held that even though a commercial did not use an actor’s physical image, using symbols associated with the celebrity constituted an appropriation of one’s image.²¹ Relying on this, the Ninth Circuit decided that Ford Motor Co. only chose to imitate Midler’s voice because the defendant knew it was a commercially valuable component of her identity.²² In doing so, the Ninth Circuit reasoned that “[a] voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested.”²³ Because Midler’s voice was such a valuable component of her identity, imitating her voice for commercial gain constituted appropriating her right to publicity.²⁴

4. Waits v. Frito-Lay, Inc.

In Waits v. Frito-Lay, Inc., the Ninth Circuit ruled that singer Tom Waits’ image was misappropriated when Frito-Lay Inc. used an imitation of Waits’ voice in a radio commercial.²⁵ When making the commercial, Frito-Lay Inc. hired a singer to imitate Waits’ distinctive voice for their ad and eventually hired singer Stephen Carter, who had spent years learning to imitate Waits’ voice.²⁶ During the hiring process, the company was afraid that hiring Carter would “pose legal problems” because of the similarities between the two.²⁷ The Ninth Circuit was asked by the defendants to re-examine the Midler decision, but instead, the Ninth Circuit reaffirmed its holding that one’s voice was a personal component of their identity, akin to using their physical image.²⁸ The Ninth Circuit concluded that the defendants had intentionally imitated Waits’ voice for personal gain by using an imitation that went against his personal wishes and that Waits’ voice was a distinctive component of his identity that warranted publicity protections.²⁹

B. Postmortem rights

1. Experience Hendrix L.L.C. v. Hendrixlicensing.com

In the case, Experience Hendrix L.L.C. v. Hendrixlicensing.com, the Ninth Circuit ruled that Washington’s statute that applied postmortem rights to publicity to a person regardless of domicile was constitutional under the circumstances of the case.³⁰ The plaintiff, Jimi Hendrix’s sole heir, formed the corporation Experience Hendrix L.L.C. with the purpose of selling Jimi Hendrix-related merchandise.³¹ Experience Hendrix L.L.C. sued the defendant, Hendrixlicensing.com, formed by Andrew Pitsicalis, for selling Jimi Hendrix-related goods in the State of Washington.³² Experience Hendrix L.L.C. claimed that Pitsicalis infringed upon their trademarks under the Lanham Act and that the defendant’s trademark infringement was a deceptive trade practice prohibited under Washington’s Consumer Protection Act (WCPA).³³ The defendant counterclaimed under Washington’s Personality Rights Act (WPRA), alleging that the plaintiff did not own the rights to Jimi Hendrix’s publicity because Jimi Hendrix was domiciled in New York, which did not recognize a postmortem right to publicity.³⁴ Pitsicalis argued that because Experience Hendrix L.L.C. did not have a right to Jimi Hendrix’s postmortem right to publicity, there was no trademark infringement under the Lanham Act or a violation of WCPA.³⁵ The Ninth Circuit then had to decide if Washington’s right to publicity statute, which allowed for one’s right to publicity to apply regardless of where they were domiciled, violated principles of choice of law.³⁶

The Ninth Circuit found that under the narrow circumstances of the case, the statute was constitutional.³⁷ The Ninth Circuit asked not if the statute was forcing states to adopt another state’s right to publicity, but if the statute can be used by the plaintiff to prevent the defendant from selling goods bearing Hendrix’s likeness in Washington.³⁸ The Ninth Circuit found no due process violations because the plaintiff had sufficient contacts with the State of Washington, making the application of WRPA “not arbitrary or unfair”.³⁹ The Ninth Circuit also found no violation of the dormant commerce clause, saying that applying the law in these circumstances would not “impermissibly burden interstate commerce”.⁴⁰ The states of Nevada and Indiana then adopted similar laws that allow the right of publicity and postmortem publicity to apply regardless of where one was domiciled.⁴¹

C. Nirvana’s Intellectual Property Battles

When Kurt Cobain committed suicide in 1994, he died without a will, and per Washington law, his intellectual property rights, including his right to publicity, were inherited by his widow Courtney Love (Love).⁴² In 1997, Love formed Nirvana L.L.C. with former bandmates, bassist, Krist Noveselic (Noveselic), and drummer, Dave Grohl (Grohl).⁴³ The goal of the new partnership was to manage Nirvana in a way that would honor Kurt Cobain’s legacy after his death.⁴⁴ A year later, the relationship soured when Love moved to dissolve Nirvana L.L.C.⁴⁵ Love claimed that Grohl and Noveselic cut her out of the decision-making process and coerced her into signing the contract that formed the L.L.C.⁴⁶ Grohl and Noveselic countersued, alleging that Love was mentally unfit to manage Nirvana L.L.C.⁴⁷ In an open letter to Nirvana fans, they alleged that Love purposely delayed the release of songs recorded by Cobain before his death for her own personal gain.⁴⁸

The dispute raged on for four years before both parties eventually settled in 2002.⁴⁹ The details of the settlement were never fully disclosed, but representatives of the parties claimed that the settlement was mutually beneficial.⁵⁰ The settlement allowed for songs that Cobain recorded before his death to be released, and provided for Cobain’s daughter, Frances Bean Cobain, by ensuring that she had a role in managing her father’s legacy in the future.⁵¹ Love maintained the right to Cobain’s right to publicity until 2010, when she took a 2.75-million-dollar loan out from her daughter’s trust fund in exchange for giving Frances Bean Cobain full control of her father’s right to publicity.⁵² As of today, the loan has not been paid back, and Frances Bean Cobain is in control of her father’s right to publicity.⁵³

For a while, Nirvana’s ongoing intellectual property battles finally seemed at peace; however, in 2018, Nirvana was thrust back into the news and the courts.⁵⁴ In 2018, Nirvana L.L.C. sued the fashion brand, Marc Jacobs, for trademark and copyright infringement after the fashion brand appeared to rip off Nirvana’s classic yellow smiley face, made famous by their Nevermind album, for their new grunge clothing collection.⁵⁵ The design on the shirt had the same details as the Nirvana trademark, with the only difference being that the eyes were traded from two X’s to an M and a J.⁵⁶ Above the smiley face read the word Heaven in the same font as the Nirvana trademark.⁵⁷ Questions of the legitimacy of the trademark were brought into question when Robert Fisher claimed that he made the image for the band rather than Kurt Cobain and Krist Noveselic.⁵⁸ This complaint was dismissed by the judge who ruled that even if Fisher had made the trademark, he did so in the scope of working for Nirvana and was barred from claiming ownership under the work-made-for-hire doctrine.⁵⁹ The legal battle lasted six years, with the parties settling in 2024, and the legal details of the settlement were not disclosed to the public.⁶⁰

III. Discussion

A. States Should Consider a Celebrity’s Values to Determine Publicity Rights After Death

What made the legal dispute between Love, Noveselic, and Grohl complicated was that all parties were trying to do right by Kurt Cobain after his death. These parties were familiar with one another during Cobain’s life but turned against each other throughout the legal disputes. The battle over Nirvana L.L.C. suggests that the law should be able to intervene to prevent family and close friends from tearing each other apart in court. State law can prevent these rifts by taking into consideration the pre-death wishes of a celebrity when determining their postmortem rights to publicity.

States should utilize Midler and Waits as a basis for law because both cases considered the parties’ wishes in determining if the parties’ right to publicly had been violated. In Midler, the Ninth Cricut considered that Midler had initially rejected the offer to do the commercial and that going forward with the voice imitation was done against her wishes.⁶¹ A similar approach was taken in Waits, where the Ninth Circuit considered that Waits was actively opposed to doing public endorsements and that Frito-Lay Inc. knew so when choosing to go ahead with the ad.⁶² At the heart of these legal decisions is an emphasis on one’s right to consent and to avoid becoming an object for profiteering. The idea of consent is also present in Washington’s right to publicity statute, as it defines a violation of one’s right to publicity as using one’s image for monetary gain without consent from the owner.⁶³

If the law considers one’s ability to consent and their values in consenting when they are alive, then the law should take this into account when one dies. Nirvana’s situation illustrates that it is not enough to consider what the heir to one’s estate consents to as the heir may tarnish the celebrity’s image, contradicting the way they lived. Love thought that she was doing what was best for Cobain and Nirvana thought that Love was exploiting his legacy. If the courts were allowed to look at facts such as statements and interviews to the public that Kurt Cobain made when he was alive, Cobain’s loved ones could have avoided long and messy legal battles and instead have focused on healing from his loss.⁶⁴

B. States Should Expand One’s Right to Publicity to Include Symbols Associated with Their Identity Upon Their Death

In Carson, the Sixth Circuit held that “[i]f the celebrity’s identity is commercially exploited, there has been an invasion of his right even if their ‘name or likeness’ is not used.”⁶⁵ The Ninth Circuit further explained that when Here’s Johnny Portable Toilet Inc. chose to use the phrase “Here’s Johnny” knowing that it held a connection with the image of Johnny Carson, the company intentionally appropriated Carson’s image for monetary gain.⁶⁶ States should use the holding in Carson to apply the right to publicity to symbols associated with the decedent during their lifetime.

Normally, when someone dies, they live on in the memories of their loved ones; however, when Kurt Cobain died, he was immortalized through Nirvana’s impact on society. When Cobain died, his estate was valued at 50 million dollars; today it is valued at 450 million dollars.⁶⁷ This growth in value is a testament to how Kurt Cobain’s legacy remains relevant in society through all things Nirvana. Today, there is no separating Kurt Cobain from Nirvana. Throughout the years the band’s surviving members have gone on to make their own music and decide their own destiny, but it is Nirvana that immortalizes Kurt Cobain. State law should acknowledge that when one dies, their right to publicity, their legacy, transfers to the symbols associated with them as it is what they will forever be remembered by.

Marc Jacobs’ use of the yellow smiley face should have been considered appropriation of Kurt Cobain’s right to publicity as well as trademark infringement. Nirvana’s yellow smiley face is a distinct image associated with both Nirvana and Kurt Cobain, similar to how the phrase “Here’s Johnny” was a distinct component of Carson’s image in the Carsoncase. The holdings of Carson, Midler, and Waits are akin to the Marc Jacobs case because Marc Jacobs, like the companies that infringed upon the celebrities’ image, was aware of the symbol’s association with the celebrity when the brand decided to use the symbol for consumption.⁶⁸ In 1992, Marc Jacobs tried to release a similar grunge collection and sent it to Courtney Love and Kurt Cobain.⁶⁹ According to Love, upon receiving the collection, “We burned it. We were punkers — we didn’t like that kind of thing.”⁷⁰ This information, along with the general similarities between the Marc Jacobs collection and the Nirvana trademark, shows that not only was this a symbol that the brand knew was associated with Kurt Cobain, but it was also something that Kurt Cobain did not support during his life. Allowing the right of publicity to expand to symbols associated with the celebrities’ legacies can help states prevent companies from commodifying the dead.

C. States Should Allow a Non-Domicile Provision to Further Prevent Commodification from the Dead

The WPRA and the case Experience Hendrix L.L.C. represents a useful tool that states should adopt to further prevent commodification of one’s image. The right to publicity is best treated as a property right; however, Congress is unlikely to ever create a federally recognized property right. By not having a federally recognized right to publicity, the courts will keep running into disputes relating to whether one receives a right to publicity based on domicile. Often when a celebrity’s estate reaches an extreme height of fame, such as Jimi Hendrix and Kurt Cobain, the profitability and likelihood of exploitation is not just an issue for the state in which they were domiciled but becomes an issue stretching the entire nation. The case of Experience Hendrix L.L.C. demonstrates how a state can prevent one’s image from future commodification within its borders without forcing neighboring states to adopt its law within their courts.

IV. Conclusion

In conclusion, states should adopt a postmortem right to publicity statute that allows them to best avoid commodification from the dead within their own borders. States can best achieve this objective by considering a celebrity’s values and wishes in determining their right to publicity, as well as expanding the right to publicity to include symbols associated with the celebrity’s legacy. In addition to this, adopting a non-domicile provision can allow a state to prevent commodification of one’s right to publicity even if the state in which the celebrity was domiciled did not recognize a right to publicity. In doing so, states can prevent others from destroying one’s legacy after their death and better protect the loved ones whom the deceased leave behind.

Cover Photo by Jose Antonio Gallego Vázquez on Unsplash

Abriana Malfatti

References

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DAVE GROHL, THE STORYTELLER: TALES OF LIFE AND MUSIC 133-204 (2021). (Referencing Nirvana’s sudden rise to fame and how it impacted the band).
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Wash. Rev. Code § 63.60.010 (2025).
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Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 837 (6th Cir. 1983).
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Midler v. Ford Motor Co., 849 F.2d 460, 464 (9th Cir. 1988).
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25
Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1097 (9th Cir. 1992).
26
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Id. at 1103.
30
Experience Hendrix L.L.C. v. Hendrixlicensing.com, 762 F.3d 829, 849 (9th Cir. 2014).
31
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32
Id.
33
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34
Id. at 835.
35
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36
Experience Hendrix, L.L.C. v. Hendrixlicensing.com, 762 F.3d 829, 837 (9th Cir. 2014).
37
Id. at 838.
38
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39
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41
See Ind. Code § 32-36-1-10 (2025); see also Nev. Rev. Stat. § 597.780 (2024).
42
Sean Michaels, Courtney Love Loses Rights to Kurt Cobain’s Image, The Guardian (May 3, 2012, at 18:20 EDT), https://www.theguardian.com/music/2012/may/03/courtney-love-kurt-cobain[https://perma.cc/6BNN-8EC3]; see also Wash. Rev. Code § 63.60.030 (2025) (outlining the State of Washington’s Inheritance right to the right of publicity when one dies without a will).
43
Krist Novoselic & Dave Grohl, An Open Letter to Nirvana Fans from Krist Novoselic and Dave Grohl, The Guardian(Dec. 12, 2001, at 18:06 EST), https://www.theguardian.com/culture/2001/dec/12/artsfeatures.foofighters#:~:text=When%20Kurt%20was%20alive%2C%20Nirvana,Geffen%20Records%20for%20its%20release [https://perma.cc/S7ZW-UPUJ].
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Id.
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Id.
46
Id.; see also Courtney Love and Nirvana in Lawsuit, ABC News (June 29, 2001, at 10:35 ET), https://abcnews.go.com/Entertainment/story?id=103920&page=1 [https://perma.cc/C2B2-GRS5].
47
Id.
48
Novoselic & Grohl, supra note 43.
49
Gene Stout, Courtney Love, Former Members of Nirvana Settle Suit, Seattle Post-Intelligencer (Sep. 30, 2002), https://www.seattlepi.com/entertainment/music/article/courtney-love-former-members-of-nirvana-settle-1097350.php[https://perma.cc/5QRC-KZJK].
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51
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52
See Michaels, supra note 42.
53
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Ian W. Gilies, No Apologies: Nirvana v. Marc Jacobs, Knobbe Martens IP + Technology Law Blogs (Feb. 22, 2019), https://www.knobbe.com/blog/no-apologies-nirvana-v-marc-jacobs/#:~:text=On%20December%2028%2C%202018%2C%20Nirvana,Estate%2C%20controlled%20by%20Courtney%20Love [https://perma.cc/29VZ-FZEC].
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Bill Donahue, Who Really Created Nirvana’s Smiley Face Logo? An Appeals Court Might Weigh In Soon, Billboard(Feb. 1, 2024), https://www.billboard.com/business/legal/nirvana-smiley-face-logo-legal-battle-appeals-court-art-origin-1235595134/ [https://perma.cc/A6LZ-UY9X].
59
Blake Brittain, Nirvana, Marc Jacobs to Settle Lawsuit Over Smiley Face Logo, Reuters (July 9, 2024, at 17:50 EDT), https://www.reuters.com/legal/litigation/nirvana-marc-jacobs-settle-lawsuit-over-smiley-face-logo-2024-07-09/ [https://perma.cc/XX4R-XCZZ].
60
Id.
61
Midler v. Ford Motor Co., 849 F.2d 460, 464 (9th. Cir. 1988).
62
Waits v. Frito-Lay, Inc., 978 F.2d 1099, 1097 (9th Cir. 1992).
63
Wash. Rev. Code § 63.60.010 (2025).
64
WatchMojo.com, One of Kurt Cobain’s Final Interviews – Incl. Extremely Rare Footage, at 09:05-11:45 (YouTube, Feb. 2, 2017), https://www.youtube.com/watch?v=3CTsGievjMU (on file with the University of Cincinnati Law Review) (In one of Kurt Cobain’s last interviews, when asked at what point that he needed people to protect him from the vultures, referencing how the band now needed to use lawyers, Kurt Cobain responds “too late, much after the fact that we’d almost been damaged to the point of no good”. He then goes onto explain how he feels like artists have to commercialize their music just to pay for the lawyers and that he would rather let the media go then have to commercialize his music.).
65
Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 837 (6th Cir. 1983).
66
Id.
67
Emma Winters, Kurt Cobain Net Worth: Nirvana Lead’s Estate Worth $450M Now vs. Fortune At Time of Death, Music Times (Feb. 20, 2023 11:21 EDT), https://www.musictimes.com/articles/90468/20230220/remembering-kurt-cobain-nirvana-leads-estate-worth-450m-now-vs.htm# [https://perma.cc/WR5U-JNLZ].
68
See Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 837 (6th Cir. 1983); Midler v. Ford Motor Co., 849 F.2d 460, 464 (9th Cir. 1988); Waits v. Frito-Lay, Inc., 978 F.2d 1099, 1097 (9th Cir. 1992).
69
Racheal Strugatz, Courtney Love on Birkins and Sex, WWD (July 21, 2010, 12:01 EDT), https://wwd.com/eye/people/feature/courtney-love-on-birkins-and-sex-3189035-1292541/ [https://perma.cc/CE25-SHGS].
70
Id.