## Facts

- Harold E. Montgomery was a local Kentucky musician who wrote and recorded songs in small studios and performed mainly at local festivals, with limited appearances outside Kentucky.
- His son, John Michael Montgomery, became a nationally known country music artist; Harold encouraged John Michael’s early musical development.
- Harold was diagnosed with cancer in 1993 and died in 1994; his widow, Barbara Montgomery, was executrix and sole beneficiary of his estate and settled the estate informally.
- In 1997, John Michael released a song and music video, “I Miss You a Little,” described as a tribute to Harold.
- The video (4:27) included about 30 seconds referencing Harold: audio of Harold singing “Let Me Be Young Again,” images of his gravestone, a record bearing his name, a photo of Harold with John Michael, and photos of Harold on a wall.
- Barbara, as personal representative, sued John Michael, Atlantic Records, and Maureen Ryan alleging unauthorized use of Harold’s voice and likeness, asserting statutory and common-law right-of-publicity theories.
- The trial court granted summary judgment for defendants; the Court of Appeals affirmed.

## Issues

1. Whether Kentucky law (statutory or common law) recognized a posthumous right of publicity enforceable by Harold’s estate on these facts.
2. Whether the video’s use of Harold’s voice and likeness constituted actionable commercial exploitation rather than protected expressive content.
3. Whether the asserted publicity interest was a cognizable, commercially valuable estate asset that could support the estate’s claim.

## Decision

- The Kentucky Supreme Court affirmed summary judgment for the defendants.
- The court held that the right of publicity did not apply to the challenged use of Harold’s identity.
- The estate could not recover under either the statutory or common-law right-of-publicity theory on the record presented.

## Legal Principles

- Kentucky distinguishes privacy interests from publicity rights; the right of publicity protects the pecuniary value of a person’s identity and is treated as property-like in nature.
- A posthumous publicity claim requires more than mere depiction of a decedent; the doctrine targets unauthorized commercial exploitation of an identity with demonstrable commercial value.
- Statutory survivability of publicity rights does not create a transferable claim for every decedent’s name or likeness; the statute is construed in line with the doctrine’s focus on commercially valuable identity.
- Expressive uses in a commemorative or narrative context, even within a commercially distributed work, may fall outside the scope of actionable publicity-based appropriation when the use is not exploitative.

## Conclusion

The court upheld summary judgment because the brief, tribute-oriented use of Harold Montgomery’s voice and likeness in a music video did not amount to actionable commercial exploitation, and the record did not show a commercially valuable identity that could support a posthumous right-of-publicity claim by the estate.


Montgomery v. Montgomery, 60 S.W.3d 524 (Ky. 2001)