Post-Mortem Publicity Rights Clearance Checklist: A Practical Checklist

Summary. This checklist helps filmmakers, publishers, advertisers, merchandisers, game studios, and AI developers decide whether they can use a deceased person's name, image, voice, or likeness, and what they must do first. It is organized in phases: classify the use, identify the person and the domicile at death, map every state whose law may apply, find the right owner through state registries and trademark records, test the use against statutory exemptions and the First Amendment, and apply the newer digital replica rules for AI voices and synthetic performances. Later phases cover the federal overlay of false endorsement, trademark, and copyright, then licensing, documentation, and release. Red-flag boxes, a table of terms and registration rules, a short worked example, and a list of common failure points make it usable on a live project.

A documentary team wants to open its film with a famous jazz singer's voice reading a letter she wrote but never recorded. A sneaker brand wants a limited-edition shoe honoring a basketball legend who died last year. An AI startup wants its music model to offer "styles" named after dead songwriters. Each project involves a dead person's identity, and each lands in a different place legally. The documentary is probably safe on publicity grounds but may need care with the synthesized voice. The sneaker almost certainly needs a license. The AI product may need several, and in Tennessee it may expose the startup to liability as a tool provider.

The questions are the same every time. This checklist puts them in order.

How to use this checklist

Work through the phases in order. Phase 1 decides how much of the rest you need: a pure news story can stop after Phase 5, while an advertisement or a digital replica needs every phase. Each item names the governing authority and, where useful, a practical note. Check an item only when you have a document or a written answer that supports it, and keep those documents in the clearance file.

The doctrine behind each item is explained in The Post-Mortem Right of Publicity: Who Controls a Deceased Person's Name, Image, and Voice. The estate's side of the same process, which tells you what the rights holder will ask for, is in Managing and Licensing a Deceased Person's Publicity Rights: A Practical Guide for Estates. For living individuals, use the Right of Publicity Clearance Checklist: A Practical Checklist instead.

Phase 1: Classify the use

• Describe the use in one sentence. Who, what, where, and to sell what. "A 30-second national TV ad for our bourbon featuring an AI voice of [NAME]" is a usable description; "a tribute" is not.
• Decide which bin the use falls in.
  • Commercial core: advertising, endorsements, merchandise, product names, packaging, sponsored content, apps or services marketed with the person's identity. These are the uses Cal. Civ. Code § 3344.1 and similar statutes target.
  • Expressive: films, television, books, articles, plays, music, documentaries, news, single works of art, commentary, parody.
  • Hybrid or gray: posters and prints, video games, tribute or impersonator shows, digital collectibles, marketing for an expressive work, branded content.
  • Digital replica or AI: any synthetic or materially altered voice or likeness, any model trained on the person's voice or image, any tool that lets users generate them.
• Identify embedded commercial uses inside expressive works. Product placements, tie-ins, and sponsor integrations inside a film are not exempt merely because the film is. California's exemption expressly excludes a commercial use embedded in an otherwise exempt work.
• Identify marketing uses of an expressive work. Ads for a protected film are usually exempt under California's statute if they advertise the work itself, but ads that suggest the person endorses an unrelated product are not.
• Note the elements of identity used. Name, nickname, signature, photograph, likeness, voice, distinctive appearance, gestures, mannerisms, catchphrases. Indiana's statute protects gestures and mannerisms; California's post-mortem statute lists name, voice, signature, photograph, and likeness.

Red flag: "It's just a tribute." Calling an ad or a product a tribute does not change its legal character. A tribute T-shirt is merchandise. A tribute ad is advertising.

Phase 2: Identify the person and the clock

• Confirm the date of death from an obituary, court record, or death certificate.
• Confirm the person's commercial value. California and New York protect personalities whose identity had commercial value at death or because of death. Washington protects every individual for ten years after death and personalities with commercial value for 75 years under Wash. Rev. Code § 63.60.040.
• Determine domicile at death. Collect probate filings (public), obituaries, property records, and any reported litigation about the estate. Note any inconsistency. Courts usually apply the law of the domicile to decide whether a post-mortem right exists, as in Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002).
• Check for prior domicile rulings or positions. If the estate has taken a domicile position in probate or tax proceedings, it may be bound by it. The Monroe successors were in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012).
• Calculate the remaining term in each candidate state. Use the table below. Count from the date of death.
• For Tennessee domiciliaries, check continuing use. After the first ten years, the right lasts until two years of non-use under Tenn. Code Ann. § 47-25-1104. Evidence of an active licensing program means the right is likely alive.
• For New York domiciliaries, check the date of death against May 29, 2021. N.Y. Civ. Rights Law § 50-f is generally understood to apply only to people who died on or after its effective date.

Red flag: "They died decades ago." Indiana protects personalities for 100 years after death and applies its statute to some who died before it took effect in 1994. California's statute reaches personalities who died within 70 years before January 1, 1985. A death in the 1950s does not mean the persona is free.

Phase 3: Map every state whose law may apply

• List the distribution footprint. Where will the product be sold, the ad run, the film stream, the app be offered? National distribution means every state.
• Apply the domicile state's law first. Determine whether that state recognizes a post-mortem right by statute or common law and for how long.
• Add Indiana and Washington for any distribution there. Ind. Code § 32-36-1-1 applies to acts in Indiana regardless of domicile, and Wash. Rev. Code § 63.60.010 applies regardless of domicile. The Ninth Circuit upheld Washington's statute as applied to sales in Washington in Experience Hendrix L.L.C. v. HendrixLicensing.com Ltd., 762 F.3d 829 (9th Cir. 2014).
• Check for statutes limited to domiciliaries. New York's and Ohio's post-mortem rights reach only those domiciled there at death; Ohio's appears in the chapter that includes Ohio Rev. Code § 2741.02.
• Check common law states for duration risk. In Georgia and New Jersey the right is common law. Duration is unsettled; a federal court limited New Jersey's to 50 years in Hebrew University of Jerusalem v. General Motors LLC, 903 F. Supp. 2d 932 (C.D. Cal. 2012).
• Record the conclusion for each state in a short memo: right exists or not, term, owner, exemptions.

Confirm every figure against the current statute. The Illinois term appears in 765 ILCS 1075/30; Indiana's in Ind. Code § 32-36-1-8.

Phase 4: Find the owner

• Search the California Secretary of State's registry of successor-in-interest claims for deceased personalities.
• Search New York's registry for deceased personality and deceased performer claims.
• Search other registries in Texas, Nevada, Oklahoma, and Arkansas if relevant.
• Search USPTO records for registrations and applications containing the person's name, signature, or image, and note the owner.
• Identify the licensing agency that represents the estate, if any, and ask for proof of authority.
• Review probate records for the will's treatment of publicity rights, the executor's identity, and any disputes among heirs.
• Identify competing claimants. Former managers, ex-spouses, children from different relationships, and business partners. California's statute assigns default shares to a spouse, children, and grandchildren when the right was not transferred, and lets holders of more than one-half exercise it.
• Get written confirmation of authority before relying on any license: the registration, the chain of title, and the signer's authority under the entity's governing documents.

Red flag: two owners, one persona. If more than one person claims the right, a license from one may not protect you from the other. Get an indemnity, consider escrowing fees, or get every claimant to sign.

Phase 5: Test the use against exemptions and the First Amendment

• Check the statutory exemption list for each state. California excludes plays, books, magazines, newspapers, musical compositions, audiovisual works, radio and television programs, single and original works of art, and works of political or newsworthy value, if fictional or nonfictional entertainment or dramatic, literary, or musical works, plus news, public affairs, sports, and political campaigns. Indiana's list is in § 32-36-1-1(c). Tennessee's news and public affairs exemption is in Tenn. Code Ann. § 47-25-1107, as amended by the ELVIS Act.
• Apply the transformative-use test where the use is a depiction for sale. The question is whether the work adds significant creative elements so that it is more the artist's expression than the celebrity's likeness, under Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001) (literal portraits on T-shirts not protected) and Winter v. DC Comics, 30 Cal. 4th 881 (Cal. 2003) (fantastical comic characters protected).
• For films and docudramas, confirm the work portrays the person as part of a story. Fictionalized portrayals are protected under de Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018), the concurrence in Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860 (Cal. 1979), and Hicks v. Casablanca Records, 464 F. Supp. 426 (S.D.N.Y. 1978).
• For titles, apply Rogers. For Lanham Act claims, a title using a person's name is protected unless it has no artistic relevance to the work or explicitly misleads as to source or content; for the publicity claim, the court protected titles unless wholly unrelated to the work or a disguised advertisement, under Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). If the name is used as a brand for your own goods, Rogers does not apply after Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023).
• For news uses, confirm the depiction relates to the newsworthy event. Newsworthiness does not cover everything: Toffoloni v. LFP Publishing Group, LLC, 572 F.3d 1201 (11th Cir. 2009) rejected the defense for old nude photographs published after the subject's murder.
• For live recreations, assess creative contribution. A show that merely imitates a dead performer's concert was not protected in Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981).
• For games, assess realism. Realistic depictions of real people doing what made them famous were not transformative in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013).
• Write a short memo stating which exemption or defense applies and why. The Publicity and Free Speech Toolkit: Transformative Use Memos, Newsworthiness Analyses, and Anti-SLAPP Motions has templates, and the Expressive Work Right of Publicity Risk Checklist: A Practical Checklist lists risk factors for productions.

Red flag: the ad for the movie that sells something else. An ad for a biopic is usually exempt. An ad for a car that uses a clip from the biopic is advertising the car.

Phase 6: Digital replicas, AI voices, and AI tools

Complete this phase for any synthetic or materially altered voice or likeness, any model trained on the person, and any product that lets users generate either.

• Determine whether the output is a "digital replica." California's 2024 amendment to § 3344.1 (AB 1836) covers computer-generated, highly realistic representations readily identifiable as the person's voice or visual likeness, in works where the person did not actually perform or where a real performance was materially altered. Ordinary editing, remastering, and authorized reuse of actual recordings are generally outside the definition.
• If California law applies and the output appears in an audiovisual work or sound recording, get consent unless an exception applies: news, public affairs, sports; comment, criticism, scholarship, satire, parody; documentary, docudrama, historical, or biographical portrayal of the person as themselves without a false impression of authenticity; fleeting or incidental use; or advertising for those works. Damages are the greater of $10,000 or actual damages.
• If the person was a New York performer, apply the deceased-performer rule in § 50-f. As enacted in 2021, it covered digital replicas in scripted audiovisual works as fictional characters and in live performances of musical works, with a disclaimer safe harbor. Amendments effective December 11, 2025 removed the disclaimer route and the requirement that the use be likely to deceive, and extended the rule to sound recordings and audiovisual works generally, so plan on consent for any knowing use of a replica.
• If Tennessee law applies, account for the ELVIS Act. The 2024 amendments add actual and simulated voice to the protected identity in Tenn. Code Ann. § 47-25-1103 and create liability for distributing technology whose primary purpose or function is producing a person's likeness or voice without authorization. The pre-amendment text of Tenn. Code Ann. § 47-25-1105 shows the original prohibition; read the amended version.
• For AI tools, review product design and marketing. Do not market a feature as "sing like [NAME]" or "clone [NAME]'s voice." Block named-person prompts for protected individuals unless licensed. Keep records of the filters and policies.
• For training data, document sources. Know whether the person's recordings, images, or voice samples are in the training set, under what license, and whether the output can reproduce them. Copyright clearance of the source material is a separate question from publicity consent.
• Check union obligations. If the production is under a SAG-AFTRA agreement, digital replicas of deceased performers require consent from the authorized representative or, if none can be found, from the union.
• Label synthetic content clearly in the work and in marketing, whether or not a statute requires it.
• Do not script new endorsements. A synthetic voice that praises a product the person never used is both a publicity problem and a deceptive endorsement problem under the FTC's 16 C.F.R. Part 255.

Red flag: "We didn't copy any recordings." The absence of copying may defeat a copyright claim. It does nothing for a voice claim. Voice imitation for advertising was actionable for living singers in Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), and the digital replica statutes reach synthetic voices of the dead.

The full digital replica framework is in Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law.

Phase 7: The federal overlay

• Assess false endorsement under 15 U.S.C. § 1125(a). Would consumers think the person, or the estate, sponsored or approved the product? This claim does not depend on state law or domicile. An estate pursued it over a famous narrator's voice in Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008).
• Search and clear trademarks. Estates register names, signatures, and logos. Using a registered name as a brand, product name, or domain is trademark infringement risk independent of publicity law; see Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998).
• Do not file your own trademark application for the person's name. 15 U.S.C. § 1052(a) bars marks that falsely suggest a connection with persons living or dead, and the estate will oppose.
• Clear copyrights in the source material separately. Photographs, film clips, recordings, and writings belong to their copyright owners, who may not be the estate. A publicity license does not license a photograph, and a photo license does not license the persona.
• Consider copyright preemption as a defense, not a plan. A publicity claim that only targets the reproduction of a copyrighted work you are licensed to use may be preempted under 17 U.S.C. § 301, but claims targeting advertising and endorsement uses usually are not, as Facenda held.

Phase 8: License, or document why no license is needed

• If a license is needed, request it from the verified owner identified in Phase 4, in writing, describing the use precisely.
• Negotiate the essentials: scope of identity elements, products, media, territory, term, approvals, fee or royalty, digital replica addendum if applicable, credit and labeling, and termination.
• Get representations and warranties that the licensor owns the rights in the states where you will use them, that no other person's consent is required, and that the registrations are current. Get an indemnity that survives termination.
• Get consent from all co-owners or from holders of a majority interest where the statute allows.
• If no license is needed, write the clearance memo stating the classification, the domicile analysis, the exemption or defense relied on, and the facts that support it. Have counsel sign off for any national campaign or wide release.
• Confirm insurance. Media liability or errors-and-omissions policies often require a clearance procedure and may exclude intentional publicity violations or digital replicas.

The licensor's form terms are in Estate Publicity Rights Toolkit: State Registrations, Licensing Terms, and Enforcement Letters; general release and license forms are in Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands.

Phase 9: Release and monitor

• Review final marketing materials against the license or the clearance memo. Marketing teams add taglines, social posts, and product tie-ins after legal review.
• Confirm required approvals were obtained in writing before release.
• Keep the clearance file with the registry searches, the domicile evidence, the memo, the license, and the approvals for at least the limitations period plus a margin.
• Prepare a response plan for a demand letter: who receives it, who evaluates it, and how quickly content can be paused if necessary.
• Calendar license deadlines, including approvals, reporting, royalty payments, and expiration.

Deadlines and timing table

A short worked example

Orchard Lane Films is producing a scripted limited series about a jazz singer, Lorraine Avery, who died in Manhattan in 2022, and a companion campaign for a sponsor's luxury watch.

• Phase 1. The series is expressive. The watch ad, which shows the actress playing Avery checking the sponsor's watch with the caption "Lorraine never missed a downbeat," is advertising. The series also includes a scene with a digitally recreated Avery performing a song she never recorded.
• Phase 2. Avery died in 2022. Her apartment, voter registration, and probate were in New York, so § 50-f applies with a 40-year term.
• Phase 3. National streaming means Indiana and Washington statutes may also apply to the ad there.
• Phase 4. The New York registry lists Avery Legacy Trust as claimant. The USPTO shows LORRAINE AVERY registered for recorded music and apparel, owned by the trust.
• Phase 5. The series is an exempt audiovisual work, and the dramatization is protected expression.
• Phase 6. The digitally recreated performance of a new song is a digital replica of a deceased performer in a scripted audiovisual work, likely needing consent from the trust under the current version of § 50-f, and under the production's SAG-AFTRA agreement.
• Phase 7. The watch ad implies endorsement and triggers both § 50-f and a Lanham Act false endorsement risk.
• Phase 8. Orchard Lane clears the series by memo, negotiates a digital replica addendum for the performance scene with script and output approval, and either licenses the watch campaign from the trust or recasts it without Avery's name or likeness.
• Phase 9. The sponsor's social team is told the campaign cannot reference Avery unless the license is signed.

Common failure points

1. Skipping domicile. Teams assume California law because they are in Los Angeles. The decedent's domicile usually controls.
2. Ignoring Indiana and Washington. National campaigns reach both states, which apply their statutes regardless of domicile.
3. Treating the expressive exemption as covering marketing for other products. It does not.
4. Licensing from the wrong person. A family member, a former manager, or an agency without current authority.
5. Clearing the persona but not the photograph or footage. Two different owners, two different licenses.
6. Assuming AI output is new and therefore free. Digital replica statutes target exactly that.
7. Losing the paper trail. A clearance decision without a memo is hard to defend and harder to insure.

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 and cases behind every phase.
• The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona: the constitutional analysis in Phase 5.
• Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law: the AI rules in Phase 6.
• Right of Publicity Basics: a primer for teams new to the area.

Related Guides

• Managing and Licensing a Deceased Person's Publicity Rights: A Practical Guide for Estates: how the estate on the other side of the table operates.
• Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide: production clearance for films, books, and games.
• Licensing and Protecting Name, Image, and Likeness: A Practical Guide: license structure from both sides.

Related Checklists

• Right of Publicity Clearance Checklist: A Practical Checklist: clearance for living individuals.
• Expressive Work Right of Publicity Risk Checklist: A Practical Checklist: risk factors for biopics and docudramas.
• Trademark Ownership Audit Checklist: A Practical Checklist: confirming who owns the marks in a person's name.

Related Toolkits

• Estate Publicity Rights Toolkit: State Registrations, Licensing Terms, and Enforcement Letters: the licensor's forms and letters.
• Publicity and Free Speech Toolkit: Transformative Use Memos, Newsworthiness Analyses, and Anti-SLAPP Motions: memo templates for Phase 5.
• Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands: releases and license forms.
• Entertainment and Media Production Toolkit: Rights, Talent, and Distribution: production rights forms.