Ray D. Madoff finds the study of laws on death and inheritance fascinating. But perhaps even more interesting, she says, is what those laws say about the living. Ms. Madoff, a professor at Boston College Law School, has studied and written extensively about estates and trusts. In her latest project, she explores what the American legal system says about death, and what that says about our culture.
Q. What makes America’s legal system distinct in how it views the rights of the dead?
A. When it comes to our most personal interests, things like our bodies and our reputations, the law takes the view that we have virtually no interest in what happens after our death. ... What’s interesting is, this is 180 degrees different from the position that we take with respect to property. When it comes to property, the law bends over backward with respect to the wishes of dead people.
Q. In your new book, Immortality and the Law: The Rising Power of the American Dead, you say those property rights have increased significantly in the past century. Why has that happened?
A. It’s being driven by corporate interests. Corporate interests are using the dead as a decoy, basically to profit themselves. So if you look at things like dynasty trusts, perpetual charitable foundations, copyright, and rights of publicity, in all of these areas the expansion of rights of the dead has benefited corporate interests, either because they derive management fees or have outright ownership. And they have lobbied their local legislatures to expand the value of their rights.
Q. Historically, why does a person not have greater rights over his or her body?
A. There is no property interest in the corpse. This principle might have made sense at a time when the body really had no value and was just a burden that needed to be disposed of in a way that wouldn’t contaminate the community. ... But as uses of the body have changed over time, the laws have necessarily tried to follow.
Q. What sort of changes?
A. There have been very modest changes, mostly in connection with organ transplants, where there’s been a big desire to increase the number of organs. That’s why we have the Uniform Anatomical Gift Act, which is designed to allow people to give their bodies to science for medical study and for organ transplants.
Q. Do decedents have the right to control how their identities are eventually used?
A. Not really. They can designate who gets their right of publicity, but not what they ultimately do with it. For example, if you look at the identities owned by this Indiana company, CMG Worldwide, which is one of the leading companies that own individuals’ rights of identity, they own people who I imagine would be slightly horrified to know that they had become a corporate asset, people like Rosa Parks and Malcolm X. Jack Kerouac is also owned by CMG Worldwide.
Q. What can a company do with those people’s images? Hypothetically, could Rosa Parks sell Coca-Cola?
A. The corporation’s rights are a matter of contract. I would imagine that, in most cases, CMG Worldwide acquires all rights of publicity that the heirs would otherwise own, in which case Rosa Parks could absolutely be used to sell Coca-Cola.
Q. How does one acquire rights to use a person’s identity?
A. They buy it from the estate, and then they control it in all sorts of ways that we don’t even think about. For example, you could have an Elvis look-alike contest, but even if you’re a nonprofit, you’d still have to pay the company that owns Elvis’s identity $5,000.
Q. What can I do to make sure my heirs follow my wishes about my body and image?
A. Let people know in advance what your wishes are, and keep your fingers crossed that they’re going to carry through. Being clear with your wishes while you’re alive is always the most helpful thing that somebody can do.
