Managing and Licensing a Deceased Person's Publicity Rights: A Practical Guide for Estates

Summary. This guide takes an executor, trustee, or family member step by step through managing a deceased person's name, image, voice, and likeness as an estate asset. It begins with the decisions to make before acting, then covers establishing and documenting domicile at death, mapping which states' laws protect the persona, building an inventory of identity assets and existing contracts, clearing title through probate, and registering claims in California and New York. Later steps cover building a trademark portfolio, choosing a licensing structure and agency, drafting license terms, adopting a written digital replica policy for AI voices and likenesses, running an enforcement program that separates commercial misuse from protected expression, and valuing the rights for estate tax. A timeline and cost table, a worked example following a fictional celebrity chef's estate, common mistakes, and an FAQ round out the guide. It also notes what users and licensees on the other side of the table should expect at each step.

Three weeks after the memorial service, Nina Brandt opens her late father's email for the first time as co-executor of his estate. Teddy Brandt was a television chef: twelve seasons of a cooking show, four cookbooks, a cookware line sold in big-box stores, and a laugh that every comedian in America could imitate. He died in October 2024 at his home in Sonoma County, California.

The inbox holds a renewal notice from the cookware licensee, whose contract expires in March. A frozen-food company that had been negotiating with Teddy before he died wants to sign the "Teddy Brandt Signature" dinner line. A documentary producer asks for archival footage and an interview. An AI startup proposes a voice assistant that would "cook with you in Teddy's voice." And a marketplace seller is already selling T-shirts with his face and his catchphrase, "Butter is a vegetable."

Nina has three questions. Who owns all of this now? Can the family say yes to some requests and no to others? And what can they do about the T-shirts? The answers depend on a sequence of steps, several of which have deadlines that started running the day her father died.

The short answer

• First establish where the person was domiciled at death. That usually decides whether a post-mortem right exists at all. Document it consistently in every probate and tax filing.
• Map the states. A California domiciliary has a 70-year right under Cal. Civ. Code § 3344.1; a New York domiciliary who died on or after May 29, 2021 has a 40-year right under N.Y. Civ. Rights Law § 50-f; Indiana and Washington apply their own statutes to uses within their borders regardless of domicile.
• Clear title. Find out whether the will, a trust, or a lifetime contract transferred the right. If not, statutory heirs may own it in shares that differ from the will.
• Register quickly where registration matters. In California an unregistered successor cannot recover damages for uses before registration; in New York the claim cannot be asserted until registration.
• Build trademarks alongside the publicity right. Federal marks give remedies that do not depend on state law or domicile.
• Put the program in an entity and write down the rules. A licensing LLC, a written approval process, and a digital replica policy prevent family disputes and make licensing faster.
• Enforce against commerce, not stories. Merchandise and ads are fair targets. Biographies, documentaries, and news are not, and suing over them risks fee awards under anti-SLAPP statutes.
• Value the right for estate tax with a real appraisal. The Tax Court rejected both a $2,105 valuation and a $434 million valuation of Michael Jackson's image and likeness.

Before you start: five decisions

1. Who has authority? Before probate opens, nobody has clear authority to sign licenses or send demand letters on the estate's behalf. If an asset is held in a revocable trust, the successor trustee may act immediately; if it passes through probate, the court-appointed executor or administrator acts once letters issue. If there is urgent infringement before letters issue, many courts can appoint a special administrator with limited powers.

2. Exploit, preserve, or restrict? Some families want an active licensing program. Others want to preserve dignity and limit uses. Some decedents left written instructions. The choice affects valuation, taxes, and the Tennessee continuing-use rule, under which a right that goes unused for two years after the first decade can end. Decide early and write it down.

3. Who will run it? Options include a family member acting as manager, a professional manager employed by the estate, or a licensing agency on commission. A hybrid is common: an estate-owned LLC that holds the rights and engages an agency for deal sourcing.

4. Where are the conflicts? Blended families, a surviving spouse who is not the parent of the children, business partners, a former manager with a contract, and a studio or label that owns the copyrights in the decedent's work all have competing interests. Identify them before they surface in a deal.

5. What is the budget? Registration fees are nominal. Trademark filings, appraisals, enforcement, and probate litigation are not. An estate with a modest persona may decide that a light program, registration plus selective enforcement, is all that makes sense.

The legal background for each of these choices is in The Post-Mortem Right of Publicity: Who Controls a Deceased Person's Name, Image, and Voice. The general probate sequence is in Probate and Estate Administration: A Practical Guide for Executors.

Step 1: Establish and document domicile at death

What to do. Gather the evidence of where the decedent was domiciled when they died, and make every filing consistent with it. Domicile is the place a person lives with the intent to remain indefinitely or to return. A person may have several residences but only one domicile.

Evidence to collect:

• Income tax returns for the last three to five years, including state resident and nonresident returns.
• Voter registration and voting history.
• Driver's license, vehicle registrations, and homestead or property tax exemptions.
• Where the will was signed and which state's law it chooses.
• Where the person kept pets, art, papers, and personal effects, and where doctors, lawyers, and accountants were located.
• Statements in interviews, social media, and books about where "home" was.
• Days spent in each residence in the last years of life, from calendars, travel records, or phone data.

Why it matters. Courts ordinarily apply the law of the domicile at death to decide whether a post-mortem right exists. Princess Diana's estate lost under California's statute because she was domiciled in England, in Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002). Marilyn Monroe's successors lost because her executors had told courts and tax authorities for decades that she was a New Yorker, in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), and Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 589 F. Supp. 2d 331 (S.D.N.Y. 2008). The doctrine at work, judicial estoppel, bars a party from taking one position, benefiting from it, and later taking the opposite one, as described in New Hampshire v. Maine, 532 U.S. 742 (2001).

Pitfalls. The biggest risk is a filing made early, for convenience or tax reasons, that commits the estate to the wrong domicile. Before the probate petition or any state tax filing describes the decedent's residence, publicity counsel should review it. Where domicile is genuinely contested, the estate may face a real trade-off: one state may impose estate or inheritance tax while another offers a stronger publicity right. That trade-off should be decided deliberately, with numbers, not discovered later.

Timing and cost. Start in the first weeks, before the probate petition. A domicile memorandum supported by documents costs a few hours to a few days of lawyer time, depending on how contested the facts are.

For users. A licensee or user facing an estate's claim should ask the same question. Probate filings are public, and inconsistent domicile positions are a defense.

Step 2: Map the rights state by state

What to do. Prepare a short memo that lists, for the decedent, each state whose law may matter and what it provides. The key variables are whether a post-mortem right exists, its term, whether registration is required, whether the right is limited to domiciliaries, and what the statute exempts.

The values in this table are summaries. Read the current statute before relying on any figure.

Why it matters. The map tells the estate where it can enforce, what it must file, and when rights expire. It also tells the estate where it cannot enforce. A New Jersey decedent has only a common law right of uncertain duration, which a federal court limited to 50 years in Hebrew University of Jerusalem v. General Motors LLC, 903 F. Supp. 2d 932 (C.D. Cal. 2012). A Georgia decedent has a common law right that the state's highest court held descendible regardless of lifetime exploitation in Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., 250 Ga. 135 (Ga. 1982). A Washington claim for a non-domiciliary was upheld on narrow facts in Experience Hendrix L.L.C. v. HendrixLicensing.com Ltd., 762 F.3d 829 (9th Cir. 2014), after the district court had held the statute unconstitutional as applied in Experience Hendrix, L.L.C. v. HendrixLicensing.com, Ltd., 766 F. Supp. 2d 1122 (W.D. Wash. 2011).

Pitfalls. Do not assume the most generous state applies. Do not assume that a famous person who died decades ago is unprotected; Indiana's statute reaches back to personalities who died before it took effect, and California's covers personalities who died within 70 years before January 1, 1985. Do not overlook Tennessee's continuing-use rule if Tennessee law governs.

Timing. Within the first month. Update the memo when statutes change, which in this field happens almost every legislative session.

Step 3: Inventory the persona and everything attached to it

What to do. Build a written inventory of every asset that carries or depends on the decedent's identity, and every contract that already grants rights in it. Treat the inventory as a living document. It will be used for probate, for the estate tax appraisal, for licensing, and for enforcement.

Categories to cover:

• Identity elements. Legal name, stage names, nicknames, signatures (collect several authenticated exemplars), catchphrases, and distinctive visual features. Note which elements the governing statute protects. California's post-mortem statute covers name, voice, signature, photograph, and likeness; Indiana's adds distinctive appearance, gestures, and mannerisms.
• Voice and performance materials. Recordings, outtakes, interviews, voicemails, and video. Identify who owns the copyright in each. The estate may own the persona but not the footage, and a studio or label may own the footage but not the persona. That split was the heart of Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008).
• Photographs. Who took them, who owns the copyright, and what releases the decedent signed. Many famous photographs are owned by photographers' archives, which is why the Monroe litigation pitted her successors against photographers.
• Copyrights the decedent owned. Books, recipes as compilations, songs, scripts. Ownership vests in the author under 17 U.S.C. § 201, and transfers by will or intestacy. Watch for termination rights that heirs may exercise under 17 U.S.C. § 203 and 17 U.S.C. § 304, which can return valuable copyrights to the family years later.
• Trademarks. Federal and state registrations and pending applications in the decedent's name, owned by the decedent personally or by a company. Check whether a business entity, not the decedent, owns them.
• Domain names and social media accounts. Access to accounts is governed by platform terms and by the state's version of the Revised Uniform Fiduciary Access to Digital Assets Act. See Digital Assets in Estate Planning: RUFADAA, Cryptocurrency, and Online Accounts.
• Existing contracts. Endorsement deals, merchandise licenses, book contracts, talent agreements, union agreements, and any lifetime grant of publicity rights. Read the term, renewal, termination on death, approval rights, and exclusivity clauses. Some endorsement contracts end at death; many licenses do not.
• Digital replica consents. Any lifetime agreement allowing a studio or technology company to create or use a digital replica. In California, a 2024 statute, Labor Code § 927 as added by AB 2602, makes some broad digital replica provisions in performer contracts unenforceable unless they describe the intended uses with reasonable specificity and the performer had legal or union representation. Those rules affect what a studio may claim it already owns.
• Known unauthorized uses. Screenshots, URLs, seller names, and dates. Capture them now. In California, damages for any of them may depend on whether the use continues after registration in Step 5.
• Written wishes. Letters, emails, interviews, or estate planning documents expressing what the decedent wanted. They are not always binding on heirs, but they guide a program and reduce family conflict.

Why it matters. Without the inventory, the estate cannot prove title, value the asset, or know what it is free to license. The appraiser in Step 11 will need it, and so will any licensee's diligence team.

Pitfalls. Inventories often miss lifetime grants buried in old management or talent agreements. A former manager may claim a perpetual merchandising right, as the Presley litigation of the late 1970s showed when the manager's licensee was the party suing. Find those claims early. Probate inventory forms are covered in Estate Administration Toolkit: Petitions, Notices, Inventories, and Accountings, and the toolkit companion to this guide has a persona-specific template.

Timing and cost. Start in the first month; finish the first pass within 90 days, which aligns with many states' probate inventory deadlines. Cost depends on the archive's size; for a major figure, an archivist is worth hiring.

Step 4: Clear title through probate

What to do. Determine exactly who owns the publicity right, in what shares, and who has authority to license it. Then put title in the entity that will run the program.

Sources of title, in order of priority:

1. Lifetime transfers. A written assignment or exclusive license made during life may control. California's statute recognizes transfers "by contract or by means of any trust or any other testamentary instrument."
2. Trusts. Property the decedent assigned to a revocable trust during life passes under the trust, outside probate. Check whether the trust's schedule or general assignment actually reached the publicity right.
3. Specific bequest. A will clause that names "rights of publicity" or "my name, voice, signature, photograph, and likeness" is the clearest source.
4. Residuary clause. In California, a 2007 amendment to § 3344.1 confirms that a residuary clause can pass the right. The amendment followed Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007), which held that Monroe's residuary clause could not pass a right that did not exist when she died. Other states' statutes may be less explicit.
5. Statutory heirs. If nothing transferred the right, California's statute vests it in a surviving spouse, children, and grandchildren in fixed shares, and then in parents. New York's statute follows a similar order. These heirs may differ from intestate heirs under the state's general probate code, and from the beneficiaries of the rest of the estate.
6. Intestacy. In states without a statutory heir list, the right passes with other personal property under the intestacy statute.

Authority to license. California lets holders of more than one-half of the interest exercise the rights. That rule is a backstop, not a governance plan. Where several people share the right, have them sign an agreement, or transfer their interests to an LLC with an operating agreement that names a manager and sets voting, approval, and distribution rules.

Disputes. Common fights include a surviving spouse's elective share or community property claim, a challenge to the will's validity, and arguments over whether a general bequest reached the publicity right. If the governing instrument is ambiguous, petition the probate court for instructions before licensing. A license signed by the wrong person is voidable, and licensees will ask for proof of authority.

Transfer to the operating entity. Once title is clear, the executor or trustee should sign a written assignment of the publicity rights, related trademarks, and goodwill to the licensing entity. Trademark assignments must include goodwill under 15 U.S.C. § 1060, and the assignment should be recorded with the USPTO. Copyright transfers can be recorded with the Copyright Office under 17 U.S.C. § 205.

Pitfalls. Do not assume the residuary beneficiary owns the right in a state without California's 2007 language. Do not let family members sign individual deals. Do not forget that an assignment from the executor needs the court's authority if the will does not grant broad powers.

Timing and cost. Usually completed within six to twelve months, longer if contested. Uncontested assignment documents cost little; contested probate litigation can cost more than the right is worth. General probate mechanics are in Probate and Estate Administration: From Death to Final Distribution.

Step 5: Register in California, New York, and other registries

What to do. If California or New York law governs, file the successor's claim with that state's Secretary of State. Consider voluntary registries in states that offer them.

California. Under § 3344.1(f), a successor in interest or licensee may not recover damages for an unauthorized use that occurs before the successor or licensee registers a claim. The registration is a short verified form identifying the deceased personality, the date of death, the claimant's name and address, the basis of the claim, and the rights claimed, with a nominal fee. Registered claims are public, which also helps users find the right owner. The California Supreme Court noted the registration requirement in Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001), a case the Three Stooges' successor brought and won.

New York. Under § 50-f, a successor must register before asserting a claim for a deceased personality, and the registry is public. Registration does not create the right; it is a condition of enforcing it.

Other states. Texas allows registration of a claim to a deceased individual's property right, and a registered claim is prima facie evidence of a valid claim and generally takes priority over a conflicting unregistered one. Nevada, Oklahoma, and Arkansas also maintain registries, and Oklahoma conditions damages on registration. Even where registration is optional, it is cheap evidence.

Why it matters. In California, every day of delay is a day of uses for which the estate cannot recover damages. Injunctive relief may remain available, but damages and statutory minimums are where enforcement leverage comes from.

Pitfalls. Filing in the wrong name (an individual heir rather than the LLC), failing to update the registration after an assignment, and failing to register licensees who will need to sue in their own names.

Timing and cost. File as soon as the claimant's identity is reasonably clear, even if probate is not closed; the claimant can amend later. Fees are nominal, and counsel's time is an hour or two per state. The toolkit companion contains a registration worksheet: Estate Publicity Rights Toolkit: State Registrations, Licensing Terms, and Enforcement Letters.

Step 6: Build a trademark portfolio

What to do. Register the decedent's name, signature, and key images as federal trademarks for the goods and services the estate licenses or plans to license, and clean up any existing registrations.

How the law treats a decedent's name. 15 U.S.C. § 1052(c) bars registration of a name, portrait, or signature identifying a particular living individual without written consent, and of the name, signature, or portrait of a deceased President during the life of a surviving spouse without the spouse's consent. Otherwise, consent of a deceased individual's estate is not required by § 2(c). But § 2(a) bars marks that falsely suggest a connection with persons living or dead, applying the test from University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 703 F.2d 1372 (Fed. Cir. 1983). An estate can oppose an opportunist's application on that ground, and cancellation under 15 U.S.C. § 1064 is available for false-connection registrations at any time.

Filing strategy. File intent-to-use applications under 15 U.S.C. § 1051(b) in the classes of planned licensing. Use actual-use filings where licensed goods are already sold. File for the signature and a stylized logo, not only the plain name. Keep registrations alive with maintenance filings under 15 U.S.C. § 1058.

Why it matters. Trademark rights do not depend on domicile, do not expire on a fixed term, and support federal claims under 15 U.S.C. § 1114 and 15 U.S.C. § 1125, with injunctions under 15 U.S.C. § 1116 and monetary recovery under 15 U.S.C. § 1117. The Presley estate's trademarks won the case against "The Velvet Elvis" nightclub in Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998), and in Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981) the estate obtained preliminary relief on its service mark and Lanham Act claims even though the court declined to enjoin on the publicity claim for lack of irreparable harm.

Pitfalls. Trademarks require use in commerce and quality control over licensees. An estate that registers widely and licenses loosely invites a naked-licensing attack; see Trademark Licensing and Quality Control: How Naked Licensing Kills a Brand. Personal names can face descriptiveness and surname refusals; see Trademarking Your Own Name. The federal cybersquatting provision for personal names, 15 U.S.C. § 8131, protects living persons; for a decedent, domain disputes run through the trademark-based tools.

Ownership fights. When family members, a former manager, or a band claim the same marks, the analysis is the one in Who Owns the Brand: Trademark Ownership Disputes Between Co-Founders, Bands, Licensees, and Distributors.

Timing and cost. File the core applications within the first six months. Government fees and counsel time run per application and per class; a focused portfolio of five to ten applications is typical for a mid-level persona.

Step 7: Choose the structure and the team

What to do. Decide who will hold the rights, who will run the program, and on what terms.

Holding entity. An LLC owned by the trust or the beneficiaries is the common choice. It holds the publicity rights, trademarks, and any copyrights that are part of the program, and it signs licenses. Its operating agreement should name a manager, require written approval for categories of deals (for example, any digital replica, any alcohol or political use), set distribution rules, and provide a deadlock mechanism.

Licensing agency. Agencies source deals, negotiate, police, and collect royalties for a commission on receipts. The estate should license the agency, not assign rights to it. Key terms include the scope of the agency (territory, categories), exclusivity, commission base and rate, approval rights retained by the estate, audit rights, the agency's duty to police, ownership of materials the agency creates, and what happens to existing deals when the agency agreement ends. The negotiating points for licensing generally are in Licensing and Protecting Name, Image, and Likeness: A Practical Guide and Entertainment Licensing Toolkit: Royalty Schedules, Approval Processes, and Audit Provisions.

Other team members. Publicity and trademark counsel, probate counsel, a tax adviser and appraiser, an archivist for a large collection, and, if the program includes digital replicas, a technical adviser who understands how voice and likeness models are trained and controlled.

Pitfalls. Agency agreements that run "for the life of the rights," commissions on deals the estate sourced itself, and agencies that also represent competing estates without disclosure.

Timing. Put the structure in place before the first significant license, ideally within six months.

Step 8: Write the license terms

What to do. Adopt a standard license form for the program and a short list of terms the estate will not give up. The point is not to negotiate every deal from scratch but to protect the persona consistently across many deals.

Core terms:

• Grant. Identify exactly which identity elements are licensed (name, signature, specific approved photographs, voice recordings), for which products or services, in which channels and territories, for what term. Anything not expressly granted is reserved.
• Exclusivity. Exclusive by category, if at all, and only with minimum guarantees.
• Approvals. Written approval at concept, prototype or script, pre-production sample, and final, with deemed disapproval (not deemed approval) if the estate does not respond in time. Approval of marketing materials as well as products.
• Brand standards. A style guide for how the decedent may be depicted, what may be said in their voice or name, and categories that are always off limits (for example, political endorsements, firearms, gambling, adult content, or anything the decedent publicly opposed).
• No implied present endorsement. An advertisement may not suggest that the decedent personally used or endorses a product unless that is true. The FTC's 16 C.F.R. Part 255 endorsement guides require that endorsements reflect the endorser's honest opinions and experience, which a deceased person cannot give about a new product. A licensed "tribute" or "inspired by" framing is safer than a fabricated testimonial.
• Money. Royalty rate and base (net sales defined narrowly), advance, guaranteed minimums, reporting frequency, late payment interest, and audit rights with cost shifting if underpayment exceeds a threshold.
• Ownership and goodwill. All goodwill from use of the name and marks inures to the estate; the licensee assigns any rights in new materials depicting the decedent; no registration by the licensee of any mark or domain containing the name.
• Digital replicas. Excluded unless a separate written addendum under Step 9 applies.
• Compliance. Product safety, labeling, advertising law, and union obligations.
• Indemnity and insurance. The licensee indemnifies for product liability and for its own content; the estate's warranty is limited to its authority to grant the license in the stated territory.
• Termination. For breach, insolvency, change of control, failure to meet minimums, and conduct that brings the decedent into disrepute; sell-off rights limited in time and quantity.
• Governing law and forum. Choose the law of the domicile state if it recognizes the right, and a forum where the estate can enforce.

Formalities. Some statutes require written consent. New York's privacy statute for the living requires written consent, and post-mortem consent under § 50-f should be in writing as a matter of practice. California's statute requires consent from the holders of more than one-half of the interest. A licensee should ask for a certificate of authority, the registration filings, and a copy of the operating agreement provision authorizing the signer.

Pitfalls. Licenses that grant "all media now known or later devised" will be read to include AI and digital replicas. Licenses without approval rights or brand standards create naked-licensing risk for the trademarks. Licenses that do not address what happens at the end of the post-mortem term, or on Tennessee non-use, may leave the estate promising rights it no longer has.

For licensees. Ask for a representation of domicile and the basis of title, a list of states where the estate claims rights, the registration numbers, and an indemnity that survives. If the estate's title is contested, escrow royalties or get an agreement from all claimants. The Brand Licensing Toolkit: License Terms, Quality Programs, and Audit Rights has general clauses that adapt well.

Step 9: Adopt a digital replica policy

What to do. Decide, in writing, whether and on what terms the estate will authorize AI-generated or digitally recreated voices, faces, and performances, and attach a digital replica addendum to any license that includes them.

Why now. Requests come early, often before probate closes, and they range from a museum's interactive exhibit to a studio's de-aged flashback to a startup's chatbot. Several statutes now treat digital replicas of the dead specially:

• California. AB 1836 (2024), effective January 1, 2025, amended § 3344.1 to create liability, with damages of the greater of $10,000 or actual damages, for producing, distributing, or making available a digital replica of a deceased personality's voice or likeness in an expressive audiovisual work or sound recording without consent, subject to exceptions for news, commentary, criticism, satire, parody, fleeting or incidental use, and documentary or biographical works that portray the person as themselves without falsely suggesting an authentic recording.
• New York. Section 50-f protects "deceased performers" domiciled in New York from unauthorized digital replicas in scripted audiovisual works and live musical performances. As enacted in 2021, the use had to be likely to deceive the public, and a conspicuous disclaimer could defeat liability. Amendments signed on December 11, 2025 (ch. 616) and effective immediately removed both the deception element and the disclaimer exemption, so an unconsented, knowing use of a digital replica is now actionable; they also extended the rule to sound recordings and to audiovisual works generally, and redefined a digital replica as a highly realistic, computer-generated representation readily identifiable as the performer's voice or likeness. The $2,000 minimum and the exemptions for parody, commentary, news, and documentaries remain.
• Tennessee. The ELVIS Act (2024) amended the Personal Rights Protection Act to protect actual and simulated voice and to reach distributors of tools whose primary purpose is unauthorized replication. The pre-amendment framework appears in Tenn. Code Ann. § 47-25-1105 and Tenn. Code Ann. § 47-25-1107; read the amended text, which adds voice and new exemptions.
• Union agreements. SAG-AFTRA's 2023 television and theatrical agreement requires producers to obtain consent for digital replicas of deceased performers from the performer's authorized representative or, if none can be found, from the union. An estate should identify who its authorized representative is and tell the union.
• Federal proposals. The NO FAKES Act, reintroduced in 2025, would create a federal digital replica right with a post-mortem term renewable on proof of use and notice to the Copyright Office. It had not been enacted when this guide was last updated.

Policy elements:

1. Default position. For example: "No digital replicas except as approved under this policy," or "Digital replicas only for archival, educational, and museum uses."
2. Prohibited uses. New musical recordings or performances presented as authentic; political, religious, or social advocacy; sexual content; endorsements of products the decedent never used; interactive chatbots that speak as the decedent on new topics.
3. Approval process. Script and storyboard approval, review of outputs before release, and final approval of the finished work, by named decision makers with a quorum rule.
4. Technical controls. The estate owns or controls any voice or likeness model trained for the project; training data limited to listed materials; no use of the model for any other purpose; deletion or escrow at the end of the term with a certificate; security standards; provenance marking where available.
5. Disclosure. Clear labeling that the performance is digitally created, whether or not the law requires it.
6. Compensation. Fees, royalties, and any union-required payments, with audit rights.
7. Kill switch. A right to withdraw approval and require takedown if a replica is misused or the context changes.

Pitfalls. Agreeing to a broad replica license in a legacy deal before the policy exists. Allowing a vendor to retain a model. Approving a project on a script and then not seeing the outputs.

For users. Expect to sign an addendum with these terms, and expect the estate to want to see outputs. The product and engineering side of compliance is in Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law.

Step 10: Run an enforcement program that distinguishes commerce from expression

What to do. Monitor, triage, and act on unauthorized uses, matching the tool to the use and saving litigation for cases that justify it.

Triage into three bins:

The legal tools.

• State publicity claims. Available where the right exists and, in California, after registration. In Tennessee, remedies include injunctions, impoundment, and damages under Tenn. Code Ann. § 47-25-1106.
• Lanham Act false endorsement. Useful everywhere, including in states without a post-mortem right. Look-alike and sound-alike ads have been held actionable for living plaintiffs, as in Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985) and Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001), and the same theory served an estate in Facenda.
• Trademark infringement and marketplace programs. A registered mark makes takedowns on major marketplaces far faster than a publicity complaint, because platform processes are built around trademarks.
• Preliminary relief. Injunctions under Fed. R. Civ. P. 65 require a showing of likely success and irreparable harm under Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). Russen denied preliminary relief on the publicity claim for lack of evidence of economic harm. For Lanham Act claims, 15 U.S.C. § 1116(a) now provides a rebuttable presumption of irreparable harm on a showing of likely success, which is another reason to plead trademark claims.

The limits. A demand against a protected work invites a declaratory judgment action or an anti-SLAPP motion with fee shifting. The relevant boundaries come from cases such as Hicks v. Casablanca Records, 464 F. Supp. 426 (S.D.N.Y. 1978), where Agatha Christie's heirs could not stop a fictionalized film and novel about her 1926 disappearance; Comedy III, where literal portraits on T-shirts were not protected; and Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), for titles, as narrowed for source-identifying uses by Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023). Newsworthiness is not unlimited: in Toffoloni v. LFP Publishing Group, LLC, 572 F.3d 1201 (11th Cir. 2009), the Eleventh Circuit held that a magazine's publication of decades-old nude photographs of a murdered wrestler was not protected by the news exception under Georgia law simply because her death was news. Copyright preemption under 17 U.S.C. § 301 can defeat claims that target the licensed use of a recording, as in Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006).

Process. Keep a log of every unauthorized use and every response; Tennessee estates should log licensed uses too, as evidence of continuing commercial exploitation. Use graduated letters: a polite notice for small sellers, a formal demand for commercial users, and a litigation-ready letter only after counsel has reviewed the First Amendment analysis. The enforcement letter templates are in the companion toolkit, and the general approach is in Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands. Anti-SLAPP risk is covered in Anti-SLAPP Statutes and Strategic Litigation Against Public Participation.

Timing and cost. Monitoring can be inexpensive with software and a part-time reviewer. Each demand letter costs little; litigation costs scale with the defendant's resistance, so pick cases with clear commercial misuse and good evidence of damages.

Step 11: Value the rights and report them for estate tax

What to do. Obtain a qualified appraisal of the publicity right (and related trademarks and copyrights) as of the date of death, coordinate it with the domicile position, and report it on the federal estate tax return if one is required.

The legal framework. A post-mortem publicity right that exists under state law is property in which the decedent had an interest under 26 U.S.C. § 2033, and it is included in the gross estate at fair market value under 26 U.S.C. § 2031 and the willing-buyer, willing-seller standard of the estate tax regulations at 26 C.F.R. Part 20. A return is required when the gross estate plus adjusted taxable gifts exceeds the basic exclusion amount under 26 U.S.C. § 6018, and it is due nine months after death under 26 U.S.C. § 6075, with an automatic six-month extension to file available. Tax is computed under 26 U.S.C. § 2001 after the unified credit in 26 U.S.C. § 2010. The basic exclusion amount was $13.61 million for 2024 deaths and, under 2025 legislation, is $15 million for 2026 deaths, indexed afterward; confirm the figure for the year of death.

What the Jackson case teaches. In Estate of Jackson v. Commissioner, T.C. Memo. 2021-48, the estate reported Michael Jackson's image and likeness at $2,105. The IRS asserted more than $434 million in its deficiency notice. The Tax Court valued the asset at its highest and best use, considered only income streams reasonably foreseeable at the date of death, excluded income attributable to separately owned assets such as music catalogs, and arrived at about $4.15 million. An estate should expect the IRS to scrutinize a nominal value for a famous persona and should expect a court to reject the IRS's use of hindsight.

Appraisal inputs. Historical licensing income, pending and renewable deals, comparable estates' programs (where data exist), the term remaining under the governing statute, the domicile risk, any lifetime restrictions on use, reputational factors at death, and the costs of running a program. Coordinate the publicity appraisal with appraisals of copyrights and trademarks so that income is not double counted.

Related tax tools.

• Alternate valuation. An executor may elect to value the estate six months after death if both the gross estate and the tax decrease, under 26 U.S.C. § 2032.
• Marital and charitable deductions. Rights left to a surviving spouse may qualify for the marital deduction under 26 U.S.C. § 2056; rights left to charity may qualify under 26 U.S.C. § 2055. The Tax Court in Jackson noted press reports that Robin Williams restricted use of his image for 25 years and gave the remaining interest to a charitable foundation.
• Disclaimers. A beneficiary who does not want the rights, or wants them to pass to the next person in line, can make a qualified disclaimer within nine months under 26 U.S.C. § 2518.
• Payment deferral. If the rights are held in an active licensing business and the business interest is large enough relative to the estate, deferral of tax under 26 U.S.C. § 6166 may be available; whether a licensing entity is an active trade or business for that purpose is fact-specific. Discretionary extensions are available under 26 U.S.C. § 6161.
• Basis. The rights take a basis equal to their estate tax value under 26 U.S.C. § 1014, so a low value now can mean more income tax on a later sale.
• Penalties. Substantial valuation understatements can draw accuracy-related penalties under 26 U.S.C. § 6662. A qualified appraisal and full disclosure are the best protection.

Pitfalls. Taking a domicile position for tax savings that destroys the publicity right (the Monroe problem). Valuing the right at zero because "there is no right" while simultaneously asserting the right against infringers. Ignoring state estate or inheritance taxes. The broader federal framework is in The Federal Estate and Gift Tax: Exemptions, Portability, and Lifetime Transfer Planning.

Step 12: Govern, record, and plan for the end of the term

What to do. Run the program like a business with records that will satisfy beneficiaries, courts, licensees, and the IRS.

• Accountings. Report licensing receipts and expenses to beneficiaries at least annually, and in the form the probate court or trust instrument requires.
• Use log. Keep a dated record of every licensed use, with samples. In Tennessee it is evidence of continuing commercial exploitation; everywhere it supports trademark use and valuation.
• Registry maintenance. Update state registrations after any assignment or change of address, and keep trademark maintenance filings current.
• Succession. Provide in the operating agreement who manages the program when the current manager dies or resigns, and how interests pass when a beneficiary dies.
• Term planning. Calendar the end of each state's term. Near the end, the value shifts to trademarks and copyrights, and licenses should be structured so they do not promise publicity rights that will lapse.
• Periodic legal review. Re-read the state map in Step 2 every year. Digital replica law in particular is moving quickly.

Timeline and cost overview

A worked example: the Teddy Brandt estate

Immediate. Teddy Brandt died on October 9, 2024, at his home in Sonoma County. Nina, his daughter, and the family's accountant are co-executors under his will, which pours everything into the Brandt Family Trust. Nina's first call is to publicity counsel, who confirms California domicile: two decades of California resident tax returns, California voter registration, and the Sonoma house as his only residence. The probate petition describes him as a resident of Sonoma County. There is no conflict to manage.

State map. As a California domiciliary, Teddy has a 70-year post-mortem right under § 3344.1, running to 2094. New York's § 50-f does not apply because he was not a New York domiciliary. Indiana and Washington would apply their own statutes to uses there. Tennessee is irrelevant.

Inventory. The archivist finds twelve seasons of the show (copyright owned by the network, not Teddy), four cookbooks (copyright owned by Teddy's loan-out company, which is owned by the trust), the cookware license (expires in March 2025, licensor is the loan-out company), three federal registrations for TEDDY BRANDT for cookware and cookbooks owned by the loan-out company, and an old management agreement that gave his former manager 15 percent of merchandising income "during the term and thereafter on deals made during the term." Teddy left a letter asking that his voice "never be used to say something I didn't say."

Title. The will's residuary clause pours into the trust, and California's 2007 amendment confirms that the residuary clause carries the publicity right. The trust's general assignment of "all tangible and intangible property" reaches the right as well. The trustee forms Brandt Legacy LLC, assigns it the publicity right, and causes the loan-out company to assign the trademarks with goodwill. Both assignments are recorded. The former manager's claim is limited to deals made during his term; counsel sends a letter confirming that position, and the cookware renewal is structured as a new deal.

Registration. In November 2024, before the estate sends any demand, Brandt Legacy LLC registers its claim with the California Secretary of State. From that day, damages are recoverable for continuing unauthorized uses.

Trademarks. The LLC files intent-to-use applications for TEDDY BRANDT and his signature for frozen foods, sauces, and kitchen textiles, and for a stylized logo. It also opposes an application by an unrelated company for BUTTER IS A VEGETABLE for butter substitutes, on false-connection and likelihood-of-confusion grounds.

Structure and licenses. The LLC engages a licensing agency for food categories only, on a three-year term with an approval process that requires Nina's sign-off. The frozen-food deal is signed with a minimum guarantee, recipe approval, and a clause forbidding ads that suggest Teddy tasted the new products. Packaging says "Inspired by the recipes of Teddy Brandt."

Digital replicas. Guided by Teddy's letter, the LLC adopts a policy: no new speech in Teddy's voice, with one exception for a museum exhibit using only words he actually said, recombined for interactive navigation and labeled as digitally assembled. The AI voice assistant proposal is declined. Under § 3344.1 as amended by AB 1836, an unconsented replica in a sound recording would be actionable with a $10,000 minimum; the startup's product, a commercial service, would be actionable under the core statute in any event.

Enforcement. The T-shirt seller receives a marketplace trademark complaint and a demand letter citing § 3344.1 and the Lanham Act. The listings come down. The documentary producer receives a different response: the LLC cannot and does not try to stop the film, but it offers access to family photographs (whose copyrights the trust owns) in exchange for a fact-checking opportunity, not editorial control.

Tax. The appraiser values the publicity right at a figure based on the cookware royalty history, the frozen-food term sheet that was under negotiation at death, and the probability of renewal, discounted for the manager's claim and for the family's restrictions on digital uses. The Form 706 is filed in July 2025 with the appraisal attached. Because the estate is above the 2024 exclusion amount, the valuation matters; it is defensible because it is based on documented income streams and foreseeable deals, the approach the Tax Court used in Jackson.

Ongoing. The LLC reports annually to the trust beneficiaries, keeps a use log, renews its registrations after an address change, and calendars a legal review every January.

Common mistakes

1. Filing the probate petition before thinking about domicile. The first description of the decedent's residence can bind the estate for decades.
2. Waiting to register. In California, every unauthorized use before registration is a use for which damages cannot be recovered.
3. Letting family members license individually. Fragmented deals undermine brand standards, create naked-licensing risk for the trademarks, and produce disputes over money.
4. Assigning rights to an agency. License the agency; keep title in the estate's entity.
5. Signing "all media now known or later devised." That phrase now means AI and digital replicas.
6. Sending demand letters to documentarians and biographers. It rarely works and can result in a fee award against the estate.
7. Ignoring copyrights owned by others. The estate may own the persona but not the footage, recordings, or photographs, and those owners have their own rights and limits.
8. Valuing the right at a nominal figure without an appraisal. The Jackson estate's $2,105 figure was rejected; the IRS's $434 million figure was too.
9. Letting a Tennessee right go unused. Two years of non-use after the first decade can end it.
10. Forgetting the decedent's own wishes. Written instructions are not always binding, but ignoring them invites family conflict and public criticism.

Frequently asked questions

Does the executor or the trustee control the publicity right? Whoever holds title. If the right passed under the will, the executor controls it during administration and then distributes it. If the decedent assigned it to a revocable trust during life, or the will pours it into a trust, the trustee controls it once it is in the trust. Where the right passes to statutory heirs in California or New York, those heirs own it directly, in shares, and should consolidate control in an entity.

Do we have to register in California if we never plan to sue? Registration is not a condition of owning or licensing the right, but it is a condition of recovering damages for uses after the filing. It also tells potential licensees where to find you. Because the cost is nominal, register.

Can the family refuse all commercial uses? Yes. Owners of property can decline to license it. In Tennessee, refusing all commercial use after the first ten years can end the right, so a Tennessee estate that wants to preserve control may need some minimal licensed use. Elsewhere, non-use does not end the term, though it may lower the estate tax value.

Can the estate stop a biopic? Generally no. Films, books, and documentaries are exempt under the major statutes and protected by the First Amendment. The estate can offer cooperation, materials it owns, or music rights, and it can object if the work uses a deceptive digital replica in a way the newer statutes prohibit.

What should a licensing agency's commission be? There is no standard rate. Commissions are negotiated as a percentage of receipts, and the right number depends on the services, the categories, and whether the estate brings its own deals. Ask for exclusions for deals the estate sources, a cap on the term, and audit rights.

Is a voice model of the decedent an asset of the estate? If the estate commissions and owns it, yes, and it should be listed in the inventory with access controls. Whether the model is protectable as property in its own right is unsettled; what is clear is that using it to produce a replica requires the publicity right holder's consent in California, New York, and Tennessee.

What if a licensee says it already has rights under a contract the decedent signed? Read the contract. Many endorsement deals end at death, and many grants are limited to specific products or terms. California's 2024 performer-contract statute may also limit broad digital replica grants made by living performers. If the grant is genuinely broad and valid, it binds the estate.

How long does the program last? As long as the post-mortem term in the governing state, plus the life of any trademarks, which can last indefinitely with continued use. Copyrights the estate owns last for their own terms.

Practical takeaways

• Decide domicile deliberately, document it, and keep every filing consistent with it.
• Map the states that matter, and recognize that Indiana and Washington may protect a persona even when the domicile state does not.
• Clear title in writing, consolidate it in an entity, and register in California and New York where those laws apply.
• Pair the publicity right with federal trademarks, and police licensees for quality.
• Write a license form, brand standards, and a digital replica policy before the first big deal.
• Enforce against merchandise and advertising; leave stories alone.
• Value the right with a real appraisal grounded in foreseeable income at death.

This document is general information, not legal advice for any particular situation; the law changes, state statutes are amended frequently, and the facts matter.

Related Documents

Related Articles

• The Post-Mortem Right of Publicity: Who Controls a Deceased Person's Name, Image, and Voice: the doctrine, the state patchwork, and the leading cases behind each step.
• Who Will Inherit Your Intellectual Property?: planning for publicity rights alongside copyrights and trademarks.
• Digital Assets in Estate Planning: RUFADAA, Cryptocurrency, and Online Accounts: fiduciary access to the decedent's accounts and files.
• Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law: the digital replica statutes in detail.
• Who Owns the Brand: Trademark Ownership Disputes Between Co-Founders, Bands, Licensees, and Distributors: ownership fights over a decedent's marks.
• Trademark Licensing and Quality Control: How Naked Licensing Kills a Brand: why licensee oversight matters for the estate's marks.
• The Federal Estate and Gift Tax: Exemptions, Portability, and Lifetime Transfer Planning: the estate tax framework.
• Anti-SLAPP Statutes and Strategic Litigation Against Public Participation: the fee risk of suing over expressive works.

Related Guides

• Licensing and Protecting Name, Image, and Likeness: A Practical Guide: license structure and enforcement mechanics.
• Probate and Estate Administration: A Practical Guide for Executors: the probate process that carries the right.
• Probate and Estate Administration: From Death to Final Distribution: the full administration timeline.
• Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide: how filmmakers and publishers will analyze the estate's claims.

Related Checklists

• Post-Mortem Publicity Rights Clearance Checklist: A Practical Checklist: what users will check before approaching the estate.
• Probate and Estate Administration Checklist: A Practical Checklist: general administration tasks.
• Trademark License and Quality Control Checklist: A Practical Checklist: quality control for licensed marks.

Related Toolkits

• Estate Publicity Rights Toolkit: State Registrations, Licensing Terms, and Enforcement Letters: the registration worksheet, license terms, digital replica addendum, and letters used in this guide.
• Estate Administration Toolkit: Petitions, Notices, Inventories, and Accountings: probate forms.
• Entertainment Licensing Toolkit: Royalty Schedules, Approval Processes, and Audit Provisions: royalty and approval clauses.
• Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands: releases and takedown forms.