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This is ALL THINGS CONSIDERED from NPR News. I'm Robert Siegel.
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And I'm Melissa Block.
Here's a story about fame, family and who gets to cash in after a well-known person passes on. It involves John Dillinger. The bank robber was a celebrity of sorts during his lifetime. His Depression-era spree of bank robberies, jail breaks and alleged murders turned him into a folk legend. In death, he became even more famous. Books, movies and TV shows have profiled the gentleman bandit who'd flirt with women during bank heists and pal around with reporters and prosecutors. Now a Dillinger descendant wants a say in who can profit from John Dillinger's reputation.
Harriet Baskas reports.
HARRIET BASKAS reporting:
Brandishing a small, carved wooden gun, John Dillinger escaped from the supposedly escape-proof Lake County Jail in Crown Point, Indiana, in March 1934. Three months later, on his 31st birthday, Dillinger was named America's first Public Enemy Number 1. J. Edgar Hoover was just taking over the FBI.
Mr. J. EDGAR HOOVER (Former Head of the FBI): We must not for a moment lose sight of our goal, to teach the criminal that regardless of his subterfuges, his squirming, his twisting and slimy wriggling, he cannot escape the one inexorable of law enforcement. You can't get away with it.
BASKAS: A month later, Dillinger was still at large. On July 22, he was the air-conditioned Biograph Theatre trying to escape a heat wave in Chicago. The movie was Manhattan Melodrama. Clark Gable played a convict on death row.
(Soundbite of Manhattan Melodrama)
Mr. CLARK GABLE (as Edward J. Gallagher): If I can't live the way I want then at least let me die when I want. Come on, Warden, let's go.
BASKAS: When the movie let out, Dillinger left the theatre. FBI agents waiting in the alley shot him, but death just increased the crook's cache. Souvenir hunters dipped hankies in his blood and later chipped away pieces of his tombstone.
Mr. SPEROS BATISTATOS (Lake County Convention and Visitor's Bureau): That's how famous the whole Dillinger crime spree was. He had some notoriety and some fame and people obviously cherished their Dillinger paraphernalia.
BASKAS: Speros Batistatos has some of that stuff. He's president of Indiana's Lake County Convention and Visitor's Bureau. In 1999, his agency opened a new welcome center in Hammond, 17 miles from the jail in Crown Point that briefly held John Dillinger.
Wanting to offer more than just free coffee and maps, the bureau paid a private collector $400 thousand for his Dillinger memorabilia. It then spent about $1 million more, creating a John Dillinger museum. Exhibits range from the gangster's baby pictures and his lucky rabbit's foot to a recreation of the alley where he died.
Mr. BATISTATOS: We have a picture from the Chicago Tribune that has people dipping and looking at the blood-soaked alley after they'd hauled Dillinger's body away. And if you hit the button here, that kind of disappears behind a screen and you see a wax figure of Dillinger laying dead in the alley with the FBI agents standing over him. We have the pants that Dillinger had on, on that night.
BASKAS: The museum also has a Dillinger death mask and a grizzly last exhibit, a mock city morgue with a mirrored door.
Mr. BATISTATOS: So you don't see what's inside there, but we ask you to turn the handle and when you do, you see Dillinger laid out on a slab.
BASKAS: Dillinger's great-nephew, Jeffrey Scalf, saw that bloody mannequin and everything else in the museum when he paid a visit shortly after the grand opening.
Mr. JEFFREY SCALF (John Dillinger's Great-Nephew): I got involved with Lake County at the request of my grandmother when she was still alive. It really bothered her that John was being referred to as a killer. Grandma always said, look, he wasn't mean-spirited, he was just someone who went on the wrong path.
BASKAS: John Dillinger was charged with murdering a police officer, but the bank robber died before a trial could take place. So Scalf has no problem with the museum calling his great-uncle a thief, but calling Dillinger a killer is unacceptable.
Mr. SCALF: They refused to take down any signs that refer to John as a cop killer or a murderer or whatever signs they had up there implying that he was a violent, blood-thirsty killer.
BASKAS: So six months after the county's Dillinger museum opened, Scalf sued the Convention and Visitor's Bureau. Dead people can't be defamed, so Scalf couldn't claim the museum was misrepresenting his great-uncle's character. But Scalf could invoke the Indiana right of publicity statute and accuse the museum of illegally profiting from Dillinger's persona.
Amy Wright is Scalf's lawyer.
Ms. AMY WRIGHT (Jeffrey Scalf's Lawyer): The Indiana right of publicity statute says that an individual has the exclusive rights to control his or her name, image and likeness in the stream of commerce.
BASKAS: Most states recognize the right of publicity. So, for example, in 1983, Johnny Carson used Michigan's right of publicity law to stop a company in that state from marketing portable toilets with the Here's Johnny slogan that Carson used in his Tonight Show opening.
19 states, including Indiana, extend the right of publicity past death and allow the right to be inherited, like property. But it gets complicated when the right of publicity comes up against free speech. Peter Wynn is an adjunct professor at the University of Washington Law School in Seattle.
Mr. PETER WYNN (University of Washington Law School): Generally speaking, the first amendment protects free expression of ideas, the ability to talk about historically important items or matters of public concern or interest. The problem, of course, is that the line between the commercial use of a name and the free expression of a name, that is something that can blur together.
Mr. J. THOMAS MCCARTHY (University of San Francisco): There is no precedent that I'm aware of that would include a historical museum.
BASKAS: J. Thomas McCarthy teaches at the University of San Francisco Law School and wrote a book about the rights of publicity. He says the Dillinger museum case definitely enters new territory.
Mr. MCCARTHY: The question in the Dillinger case is where do you put a historical museum? Is that in the same category as a history book or is that in the same category as using a person's name to help promote and advertise a product.
BASKAS: The line can get fuzzy when it comes to films and other clearly commercial endeavors. J. Thomas McCarthy, for example, was an advisor in a case involving the movie The Perfect Storm. The families of some of the fisherman who drowned in the real-life incident on which the movie was based sued Warner Brothers Studios for using the dead men's names.
Mr. MCCARTHY: And it went all the way to the Florida Supreme Court, which last year held that it was not an infringement of the postmortem right of publicity of the captain and the crew because the movie was an expressive work. It was free speech. It was like history.
BASKAS: In Indiana, the Lake County Convention and Visitor's Bureau has argued since 2000 that the right of publicity does not apply to the case of its Dillinger Museum. Last January, a judge rejected that claim and now a decision on the county's appeal is pending.
If John Dillinger's great-nephew wins the case, Jeffrey Scalf says he may just open his own Dillinger museum - or take proposals.
Mr. SCALF: What we'll do is we'll take the entity that is John Dillinger - his name, image, likeness, his personality, his charm, his charisma, those things that people seem to enjoy - and we'll authorize people to use that in their commercial endeavors.
BASKAS: If the Lake County Convention and Visitor's Bureau wins its appeal, Speros Batistatos vows to reopen the John Dillinger Museum, which closed in January.
From NPR News, I'm Harriet Baskas. Transcript provided by NPR, Copyright NPR.