Larry Birkhead, the father of Anna Nicole Smith’s only surviving child Dannielynn (and therefore the heir to her large estate), is threatening legal action against the Royal Opera House over its opera “Anna Nicole.” Birkhead is insisting that the portrayal of Smith is not flattering or respectful — leading to some interesting questions of how (even if Anna Nicole were living) such an opera would defame a former stripper and reality television star who courted controversy in her life.
I have long advocated the statutory elimination of the torts doctrine barring defamation actions on the part of the deceased. The rule that “you can’t defame the dead” often protects outrageous lies written about famous deceased persons as detailed in this prior column.
Given the common law rule, it is doubtful that a case could be made for defamation in the United States. It is not clear whether the English would tolerate such a rule. However, even without the rule, Smith was a public figure subject to the actual malice rule under New York Times v. Sullivan. Moreover, she intentionally lived a notorious life to draw public attention to herself and her reality television program. She would not qualify as so notorious as to be a “libel-proof” plaintiff. However, it certainly would make a case difficult under conventional common law principles.
That leaves the possibility of an action for appropriation of name or likeness.
652C Appropriation of Name or Likeness
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.
a. The interest protected by the rule stated in this Section is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others. Although the protection of his personal feelings against mental distress is an important factor leading to a recognition of the rule, the right created by it is in the nature of a property right, for the exercise of which an exclusive license may be given to a third person, which will entitle the licensee to maintain an action to protect it.
b. How invaded. The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff’s name or likeness to advertise the defendant’s business or product, or for some similar commercial purpose. Apart from statute, however, the rule stated is not limited to commercial appropriation. It applies also when the defendant makes use of the plaintiff’s name or likeness for his own purposes and benefit, even though the use is not a commercial one, and even though the benefit sought to be obtained is not a pecuniary one. Statutes in some states have, however, limited the liability to commercial uses of the name or likeness.
It could also involve claims of trademark infringement. Smith has already (posthumously) established new law in the area of probate law. Her estate has now been granted a rare record review by the Supreme Court.
However, while I have been critical of the ever-widening range of trademark and copyright claims, I would be surprised if the use of Smith as the subject of an opera would be actionable in this case. If that were the case, writers and artists could not use historic or celebrity figures in their works. These individuals are often cultural icons who are common subjects for artists.
The opera reportedly involves bad language and depictions of drug abuse and sexual encounters (including one with a man in a wheelchair). Smith was known to have been a drug user and to have lived a rather wild life. She was accused of acquiring wealth by marrying mogul J. Howard Marshall, who was 62 years her senior and met her during her work as a stripper. Smith ultimately died of a prescription drug overdose in 2007 at the age of 39.
Birkhead also makes a less than compelling plaintiff. He was roundly criticized as one of a number of people who were viewed as leeching off Smith. Birkhead insists that Dutch soprano Eva-Maria Westbroek does not do Smith justice: “That lady is no Anna Nicole . . . One day my daughter is going to see this trash. These aren’t the images you want to relate to your child.” It may be a bit late for that concern. Smith was not exactly June Cleaver.