Currently, Louisiana does not protect the publicity rights of a deceased individual.
A House committee approved a bill that would enact the Allen Toussaint Legacy Act, outlawing the use of a deceased individual's name, image and likeness without the consent of the individual's family or representative.
The bill, named after a famous New Orleans musician, seeks to prevent the exploitation of Louisiana's cultural assets and ensure the protection of performers' identities.
An unlicensed merchandiser selling "koozies" -- fabric or foam sleeves used to keep beverages chilled -- featuring Toussaint’s image at the 2016 Jazz Fest, months after the singer's death, inspired Tim Kappel, a music business attorney and Loyola professor, to push for the bill.
Currently, Louisiana does not protect the publicity rights of a deceased individual, so Toussaint's family did not receive any benefit from the merchandiser.
This bill, which has been debated since 2017, seeks to change that.
"It struck me as odd that there would be people out there merchandizing his name, image and likeness without the consent of the family, which I assumed had not been granted," Kappel said.
Rep. Walt Leger III, D-New Orleans, the highest-ranking Democrat in the House, sponsored the bill, which could protect the use of a deceased individual's identity for up to 70 years.
"We should articulate, legislatively, that we have an interest in protecting our artists and entertainers and that that right extends after their death," Leger said.
Toussaint, a New Orleans icon, heavily influenced the city's rhythm and blues scene in the 60s and 70s. As styles changed, he adapted and continued to shape sounds further into his career. He was inducted into the Rock and Roll Hall of Fame in 1998 and died while touring in Spain in 2015.
The bill exempts protections when one's identity is used for news, political or artistic matters.
Lawmakers and entertainment industry representatives were mostly in agreement about the bill's necessity. However, some voiced concerns. They sought clarification and further compromise on details regarding the use of digital avatars, including the 70-year period after death that the bill would protect and the level of consent needed from heirs or representatives of the deceased artist.
Industry representatives argued that restricting the use of digital avatars could amount to a chilling effect on freedom of speech.
The majority of other states have laws that -protect an individual's publicity rights.
Rep. Leger and entertainment representatives hope to work out those issues as the bill moves to the House floor.
"We've spent three years on the right of publicity, let's get something we can all agree on," attorney Steve Duke, representing the Motion Picture Association of America, said.
Originally published April 30, 2019.