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Unhappy Accidents: the Bob Ross Saga and IP Rights Explained (1)

Sept. 13, 2021, 9:01 AM; Updated: Sept. 14, 2021, 5:35 PM

At the root of the scandal and drama in a Netflix documentary about painter Bob Ross is an intellectual property fight revolving around the nature and proper management of assets like publicity rights.

The documentary, “Happy Accidents: Betrayal and Greed,” dives into the history of Ross’ rise and his son Steve’s legal struggle to secure Ross’ intellectual property, including rights to his name and image. But ultimately, the corporate structure of Bob Ross Inc., founded by the soft-spoken television painter, his wife, and business partners Annette and Walt Kowalski, dictated the result.

Bob Ross Inc. secured all of Ross’ intellectual property rights in a 2019 court ruling, contrary to what his will said when he died. The four founders had set up Bob Ross Inc. as the exclusive rightsholder of Ross’ intellectual property, and if a founder died, the rest split the share. Ross’ wife died first then Ross, so the Kowalskis were left with all of it in another cautionary tale in managing IP rights.

The 2019 case also hinted at questions about what would have happened if different types of rights conflicted.

(1) What are publicity rights?

Publicity rights are an individual’s right to control commercial use of their image, likeness, and persona. In other words, people can’t use you to sell stuff without your permission. In Bob Ross’ case, the right is inherently involved in sales of Bob Ross-branded painting supplies and other merchandise. Bob Ross Inc. also owned Bob Ross trademarks, including a logo with his name and face, complete with his emblematic frizzy hair.

Publicity rights stem not from federal law but from state and common law, which vary. Federal trademark law does incorporate a false endorsement provision, but that requires showing consumer confusion.

(2) What happens when a person dies?

That depends on where they lived. About two-thirds of the U.S. population resides in states that protect a posthumous right, according to information compiled by University of Pennsylvania law professor Jennifer Rothman. In most other states, the degree of protection is unclear. The right can expire between 10 and 100 years after the individual’s death.

If there is a protected posthumous right, the right to control and sell use of the deceased’s image in a commercial context can be passed to an heir, like any asset. Bob Ross assigned a 51% stake in his intellectual property, including publicity rights, to his half-brother, Jimmie Cox, and 49% to his son, Steve.

Or, at least he thought he did. The U.S. District Court for the Eastern District of Virginia said his intellectual property wasn’t his to give when he died.

(3) Wait, can you lose commercial control of your identity?

It’s complicated, but generally yes. Statutes and property right-based common law generally create a right that’s transferable both before and after death.

Ross never formally signed his rights away. But in the Eastern District of Virginia case, the court cited “licensing agreements which stated that BRI, not Bob Ross, exclusively owned the relevant rights.”

A 1997 settlement between the company and Ross’ estate formally signed over Ross’ IP rights to Bob Ross Inc., though his son Steve said in the documentary he didn’t know of his purported IP inheritance until shortly before his 2017 lawsuit.

There’s some debate about whether publicity rights should be transferable.

“The right to assign your identity is a troubling concept,” intellectual property law professor Mary LaFrance of the University of Nevada Las Vegas said. “You’re essentially giving your right to a corporation to do whatever they want with your likeness. And I think most scholars find that troubling.”

(4) What if Bob Ross never surrendered his publicity rights?

That alone might not have done Ross’ heirs any good. The publicity rights, a state right, would effectively give way to Bob Ross Inc.’s federal trademark rights, intellectual property law professor Marshall Leaffer of Indiana University said.

“You can imagine the chaos that would occur if publicity rights would trump trademark rights,” Leaffer said. “The supremacy clause couldn’t tolerate that.”

Leaffer also said the Lanham Act’s prohibition on using a well-known identity as a trademark without permission wouldn’t apply: Ross had granted Bob Ross Inc. that permission.

“The guy licensed his image,” Leaffer said. “In this case publicity rights and trademark rights bump up against each other. Merchandise rights almost swallow up publicity rights, because the merchandising is going to be based on image.”

LaFrance agreed that Ross’ heirs probably wouldn’t be able to stop Bob Ross Inc., or really do much business on their own with just the publicity rights. Using them to advertise anything related to painting would almost certainly infringe Bob Ross Inc. trademarks.

“Once the company did build that image or brand, they acquired rights in his image and trademarks,” LaFrance said. “Once the company has invested in building a business around these trademarks it would be unfair to revoke their permission.”

(5) What’s the lesson in all this?

Intellectual property attorneys regularly advise anyone with potentially valuable intellectual property to get legal advice from an estate planner before signing a dotted line. And they say to contemplate disputes that may seem unimaginable at the time.

LaFrance said Ross agreeing to Bob Ross Inc.’s corporate setup essentially disinherited his family if a Kowalski outlived a Ross. At that point, there likely wasn’t anything he could do about it.

“It strikes me as a big mistake the way Bob Ross allowed the other owners of the corporation to become the owners of his shares instead of having those go to his children,” LaFrance said. “Even if they’re estranged, think about the future: You may have reconciliation.”

To Learn More:
—From Bloomberg Law

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Phyllis Schlafly Family Trademarks, Likeness Dispute Rages On

(Updates Sept. 13 story with additional reporting. An earlier version corrected the university name in the 15th paragraph.)

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editors responsible for this story: Keith Perine at kperine@bloomberglaw.com; Kibkabe Araya at karaya@bloombergindustry.com

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