Who Owns Janis Joplin? : Playwright, Heirs Fight for a Piece of a ‘60s Icon

SEATTLE —  Once again, a court has been asked to step into an argument between creativity and commercialism, and settle the question: What is left behind when a celebrity dies? And who does it belong to?

This federal court case involves rights to the fame of Janis Joplin, the growly, belt-’em-out blues singer who helped shape the musical epoch of the ‘60s with her renditions of songs like “Me and Bobby McGee” and “(Take a) Piece of My Heart.”

Joplin heirs succeeded this summer in closing down a Seattle theater’s production about the late singer, declaring that her memory and persona are the property of her survivors, who have the right to license their use.

Joplin’s estate said the 11-week run of the community play “Janis” was illegal because it used not only Joplin’s music but her name, likeness and image. The estate said it held the “the sole right to exploit” Joplin’s memory.

Attorneys for the estate filed a U.S. District Court suit against the local theater producers, who halted its run last month fearing financial losses associated with litigation.

Novice Seattle playwright Susan Ross, the author of “Janis,” chose not to back down but filed a countersuit in federal court and has waged a noisy local campaign for support on grounds that creative license, not commercial license, is at stake.

With both cases now pending and a trial still some time off, the case is being argued in the arts community and with increasing intensity in the news media, somewhat to the discomfort of the Joplin estate.

Ross and her attorney, Melvyn Simburg, say the assertion by Joplin’s estate is so sweeping that it covers any kind of art or literature about the troubled singer, who died in 1970 at age 27 from a heroin overdose.

“If someone has a right to issue you a license, they also have a right not to issue you a license, or to demand that you make changes to meet with their approval,” said Simburg.

Indeed, as written, the complaint would seem to be a bold new foray into the unsettled area of law known as “the right of publicity.” That is, the right to profit from a deceased star’s celebrity--no small matter in a culture absorbed by celebrity.

In particular, the court complaint said Joplin’s estate and heirs “now own the sole right to exploit the name, likeness and image of Janis Joplin for commercial gain.”

On its face, that would seem to include everything from Janis Joplin T-shirts to books about the singer.

In Washington state, as in many states, there are no statutes on the matter. A federal court decision here, then, could have implications across the country.

By contrast, California has been a pioneer in the fight over the right of publicity in cases involving deceased celebrities. A 1985 statute allows the heirs of stars to control commercial exploitation of their names and likenesses for 50 years. But the California statute also exempts “a play, book, magazine, newspaper, musical composition, film, radio or TV program other than an advertisement or commercial announcement.”

In states without statutes, and even in some where the statutes are untested, all kinds of courts have been asked to wade into disputes over rights to the name and likeness of deceased stars. Some courts have decided there is a right to publicity that passes to heirs, while other courts have said such rights end at a celebrity’s death.

One of the most famous cases was in 1979, when a California court held that the heirs of the late actor Bela Lugosi had no exclusive rights to his characterization of Dracula. That led to a long debate and ultimately to adoption of the 1985 California statute.

On the other hand, the Elvis Presley estate has successfully blocked mock concerts featuring Elvis impersonators in some states, according to attorneys familiar with the issue.

In this dispute over the memory and persona of Janis Joplin, New York stage producer Manny Fox purchased theatrical rights to the singer’s story from the estate. As far as he was concerned the case was a clear-cut matter of show business protocol. He bought the stage rights to Joplin’s music and her story; Ross and the Seattle producers did not.

Moreover, Fox said, the Seattle production involved the staging of songs that were copyrighted, a matter of law that is typically straightforward.

“They could tell any story they wanted. If they were not using her copyrighted music and if they were not using her persona, there never would have been a claim,” he said.

Indeed, during negotiations prior to the filing of suits, the Seattle producers dropped two disputed songs from the play “Janis,” hoping to placate the Joplin estate.

Attorneys on both sides of the issue acknowledged that courts around the country have been granting estates the right of publicity, particularly in clear-cut matters of commercialization--such as a mock concert featuring an Elvis impersonator and the hawking of souvenirs.

Fox and an attorney for the estate said their court complaint seeks to protect the marketability of Joplin’s story from just such open exploitation. They insist they are not seeking broader rights to, for instance, control the publication of books that use Joplin’s name.

But the issue in Seattle is broader than old-fashioned music copyright or imitation, argue Simburg and Ross. The Seattle play “Janis” was not a ruse for someone to try and cash in on Joplin by mimicking one of her concerts. More than half of the play was not musical, but a make-believe day in which Joplin meets other notable characters who supposedly influenced her style, including the late Mae West and Jack Kerouac.

In Seattle, Ross says this is the tradition grist of a free theater, an artistic interpretation of an important American musical figure.

“Janis Joplin is a part of our national heritage. Her influence on us today, on the music business and on the way women in music perform, is tremendous. She’s not a part of someone’s personal property,” Ross says.

In New York, Fox says it’s simply the theft of a tangible and valuable commodity.

“The last thing I would do after a lifetime in the arts is limit anyone’s inherent right of creative expression. . . . But there is a property right to the characterization of Janis, the persona she created.”