The Right of Publicity – What It Protects After You Die
What Is the Right of Publicity?
Most people have heard of privacy rights or copyright law, but the right of publicity is something different. It gives a person control over how their name, image, voice, and likeness are used — especially for commercial purposes. In simple terms, if a company wants to use your face to sell a product, they need your permission first.
This right matters a great deal for celebrities, athletes, and public figures whose names and faces carry real financial value. But it does not stop when they die. In many places, the right of publicity can pass on to their family or estate, sometimes lasting for decades after death.
How the Right of Publicity Works During a Person’s Lifetime
While someone is alive, the right of publicity is fairly straightforward. A person can decide who gets to use their identity and for what purpose. They can license their name or image to a brand, sue someone who uses it without permission, and earn money from endorsements and appearances.
This is why celebrity endorsement deals are worth so much. When a well-known athlete agrees to appear in a commercial, they are essentially renting out their right of publicity. The company pays for access to that person’s identity because the audience recognizes and trusts them.
Breaking this rule has real consequences. Companies that use a person’s likeness without consent can face lawsuits and be ordered to pay significant damages.
What Happens to the Right of Publicity After Death?
Here is where things get more complicated. Whether the right of publicity survives death — and for how long — depends largely on where the person lived or where the case is being handled.
In the United States, there is no single federal law governing this. Instead, each state has its own rules. Some states offer strong postmortem protections, while others offer very little. A few key examples include:
- California: Protects the right of publicity for 70 years after death for individuals who had commercial value tied to their identity.
- Tennessee: Home of the ELVIS Act (Ensuring Likeness Voice and Image Security), which offers some of the strongest protections in the country, with no expiration date in certain cases.
- New York: Protects the right of publicity for 40 years after death.
- Indiana: Extends protection for 100 years after death.
In states that do not have postmortem right of publicity laws, the right may simply disappear when the person dies. This means anyone could theoretically use that person’s name or image without legal consequence — at least under that state’s law.
Who Inherits the Right of Publicity?
When someone dies, their right of publicity typically becomes part of their estate, just like property or money. It can be passed down through a will, inherited by family members, or managed by a trust. This is where estate law and intellectual property law overlap in important ways.
Celebrities often take steps during their lifetime to set up structures that manage these rights after death. Their estates then have the power to approve or reject commercial uses of the deceased person’s identity. Well-known examples include:
- The estate of Marilyn Monroe, which has been involved in numerous legal battles over the use of her image.
- The estate of Elvis Presley, which generates millions of dollars each year through licensed merchandise and appearances.
- The estate of Michael Jackson, which has fought hard to control how his name and likeness are used commercially.
These estates act much like a business, making decisions about licensing deals, brand partnerships, and legal enforcement to protect the value of the deceased person’s identity.
Why This Matters for Families and Heirs
For the average person, the right of publicity may not seem like a big deal. But for families of well-known individuals, it can represent significant financial value. A name with wide public recognition can be worth millions — and without proper legal protection, that value could be lost or taken advantage of.
Even people who were not major celebrities during their lifetime can sometimes have their identity used commercially after death. This is why estate planning around intellectual property rights is becoming more important.
If you are an heir to someone with a recognizable name or image, it is worth speaking with an attorney who understands both estate law and intellectual property. You may have rights worth protecting.
The Growing Challenge of Digital Technology and AI
The right of publicity is being tested in new ways thanks to modern technology. Artificial intelligence can now create realistic images, videos, and even voice recordings of real people — including those who have died. This raises serious questions that existing laws were not always designed to answer.
Some recent developments that have stirred debate include:
- AI-generated music that mimics the voice of a deceased artist.
- Deepfake videos placing a dead actor’s likeness in new films or advertisements.
- Hologram performances featuring artists who have passed away.
Lawmakers are beginning to respond. Several states have proposed or passed legislation specifically targeting the use of AI to recreate a person’s likeness without permission. Tennessee’s ELVIS Act, for example, was partly a response to growing AI concerns.
As technology advances, the laws around the right of publicity will need to keep up. The core question remains the same: who has the right to control how a person’s identity is used, even after they are gone?
Right of Publicity vs. Copyright — What’s the Difference?
People sometimes confuse the right of publicity with copyright. They are related but not the same thing.
Copyright protects original creative works — a song, a book, a film. The right of publicity protects a person’s identity itself — their name, face, voice, and personal brand. A photo of a celebrity might be protected by copyright (owned by the photographer), but the celebrity’s image in that photo is protected by the right of publicity (owned by the celebrity or their estate).
Both types of rights can apply to the same situation, and both can survive death. Understanding how they interact is important for anyone dealing with the legacy of a well-known individual.
Key Takeaways
The right of publicity is a powerful legal tool that protects a person’s identity and its commercial value. After death, these rights do not simply vanish — in many states, they pass to heirs and can be enforced for years or even decades. Here is a quick summary of what to keep in mind:
- The right of publicity gives individuals control over the commercial use of their name, image, and likeness.
- After death, this right can be inherited and managed through an estate.
- Postmortem protections vary widely by state, with some offering decades of coverage and others offering none.
- Technology, especially AI, is creating new challenges that existing laws are just beginning to address.
- Both estate law and intellectual property law play important roles in protecting these rights.
If you have questions about your own rights or the rights of someone in your family, consulting with a qualified attorney is always the best first step. The law in this area is changing fast, and staying informed can make a real difference.
