Rights to Deceased Movie Actor Figurine

Dear Rich: I have a business that sells small collectible figurines. I am interested in finding out whether it is acceptable for me to create figurines of characters in movies which have entered the public domain, without obtaining permission. For example, a classic 1940s movie entered the public domain because of a failure to file a copyright or extension. The actors in this movie are well-known and have been in many other movies. I would like to produce and market a figurine of one of these characters, as portrayed by this well-known actor (who is now deceased). Is this acceptable? The short answer to your question is "yes, for the movie rights; maybe not for the rights connected with the actor's estate." The only way you could be hassled regarding the movie rights is (1) if the movie is based on a book which has not fallen into the public domain and (2) a court feels that the literary character is separately protectible. The Dear Rich staff thinks that's a long shot, since most books published before 1963 are probably in the PD. As for the actor's publicity rights, many states, including California, have a "descendible" right of publicity, meaning that the actor's estate inherits the right to exploit his persona. In California, that right lasts for 70 years after death. That's why Steve McQueen and John Wayne are still making endorsement deals. Since it is sometimes difficult to separate an actor from a character -- think Jimmy Stewart and George Bailey -- the right of publicity may be triggered by your figurine (provided the public can recognize it as being based on the actor). In that case, check your mailbox for a C&D letter.