Using a Real Person's Name in a Marketing Campaign

Hi we are working on a marketing campaign (We're a UK agency), we would like to tell the story of US person who we believe is dead. They are not celebrity famous, but the person does have a known story for something they tried to do back in the 70's.

I doubt they ever claimed a trademark on their name and there is only a small amount of information about them on the internet. Our campaign does have a commercial intent and the company we are working with do intend to profit from the story.

Can anyone advise on an approach so that we don't get caught up in a legal battle with the estate and royalties. We want to be respectful to the family, but have been unable to find a living relative thus far and no trademark on the persons name. If we go ahead with the story can we be sued? They are not particularly famous although there is an infamous story - its not quite Al Capone, but this is the kind of story we're wishing to tell.

We believe the person may have been from Montana.

Thanks in advance.

Take a lesson form the old US TV series Dragnet. " The names have been changed to protect the innocent."

Many states have laws that protect publicity rights in a person's name, voice, image, signature or likeness after death, with the details of the laws varying by state. Basically, you should assume that if you would have been required to pay the person to use their story during the person's lifetime, in order to use it in your advertisement or marketing materials, their estate would have a claim against you for your unauthorized use of the person's identity after their death. That doesn't mean that the estate will always be entitled to compensation -- but the more commercial the use of the story and the more protectable elements a marketing scheme incorporates, the more likely it becomes that compensation will be owed. Similarly, the more the marketing materials suggest that the person endorsed or would have endorsed a product or service, the more likely it is that compensation would be owed.

As they say, the devil is in the details. You should run your marketing plan and script or materials past a lawyer familiar with the law of the state(s) in which a claim for compensation might be made or, in the alternative, take budwad's approach and simply change or omit identifying details such that you are telling the story without implicating the identity of the person whose estate may be in a position to make a claim.