We reported in the past on the right of publicity in the context of tweeting or posting in social media about celebrities without their permission. As we are approaching Halloween, we thought it might be an opportune time to continue this series and report on the postmortem right of publicity for the deceased. Most companies might have guessed that a right of publicity does not always end at the gravestone (at least for individuals who were domiciled in the U.S.), but that deceased individuals may in a sense exercise their rights from the grave for some specified period of time. However, companies wishing to exploit a deceased individual’s likeness in the U.S. for commercial purposes may be wondering exactly how long they must wait, and which state laws they must turn to in order to assess this time period. (Of course, obtaining permission from the estate in any case is the most conservative approach.)
The Right of Publicity
The right of publicity is generally understood to be the right of a person to control the commercial exploitation of his or her identity, and prevent commercial appropriation of his or her identity by others without permission. Although this right under U.S. law is recognized at the state level and thus can vary, a right of publicity violation generally consists of unauthorized use of a protected aspect of identity (i.e. name, image, likeness) for commercial purposes, such as use on commercial products and in commercial advertising.
The majority of states in the U.S. that recognize a right of publicity extend the right to deceased individuals. However, these so-called “postmortem” rights are usually limited in duration or subject to some requirements for acquiring, maintaining or enforcing the rights...
