The Post-Mortem Right of Publicity: Who Controls a Deceased Person's Name, Image, and Voice

Summary. This article explains whether a person's right to control the commercial use of their name, image, voice, and likeness survives death, who owns it afterward, and what it does and does not allow heirs to stop. It traces the doctrine from the Bela Lugosi and Martin Luther King Jr. cases through the statutes that California, Tennessee, Indiana, Washington, and New York enacted in response, and it maps the state patchwork of durations, registration rules, and domicile requirements. The center of the analysis is choice of law: courts usually ask where the person was domiciled at death, which is why Marilyn Monroe's heirs, Princess Diana's estate, and Albert Einstein's beneficiary lost claims that looked valuable. The article then covers the limits that protect biographies, films, and art, the new digital replica rules for AI voices and synthetic performances, federal fallbacks under the Lanham Act, and the estate tax consequences shown by the Michael Jackson valuation case. It closes with an extended worked example, common mistakes, an FAQ, and practical takeaways for estates, users, and planners.

A creative director at a regional ad agency in Austin has a pitch she loves. Her client, a small-batch bourbon company called Copperline Spirits, wants a 30-second spot built around the voice of Wade Calloway, a country singer who sold millions of records in the 1990s and died in 2017. The agency's audio vendor can train a voice model on Calloway's old radio interviews in an afternoon. The script has "Wade" reminiscing about a porch, a guitar, and a glass of Copperline. Nobody is going to use his actual recordings, so there is no copyright problem. Calloway is dead, so there is no one to be offended. What could go wrong?

Nearly everything. Within a week of the first test cut circulating, the agency hears from a Nashville lawyer representing Calloway Legacy LLC, which claims to own "all rights of publicity of Wade Calloway, deceased." A second letter arrives from a lawyer for Calloway's second wife, who says she inherited half of those rights and never agreed to the LLC. The agency's own counsel asks a question no one had thought about: where did Calloway actually live when he died? He kept a farm in Tennessee, a condo in Los Angeles, and a fishing cabin in Montana, and his will was probated in Montana.

That question decides most of the case. Whether a dead person's identity can be owned, who owns it, for how long, and what that owner can stop are all questions of state law, and the states answer them very differently. This article explains the answers and the reasoning behind them.

The short answer

• Whether the right survives death depends on state law, usually the law of the state where the person was domiciled at death. Roughly half the states recognize some post-mortem right by statute or common law. Others recognize none, and a few have never decided.
• Durations vary from 20 years to 100 years, and one state has no fixed end. California protects a "deceased personality" for 70 years under Cal. Civ. Code § 3344.1; New York for 40 years under N.Y. Civ. Rights Law § 50-f; Indiana for 100 years; Tennessee for 10 years and then for as long as the right keeps being used commercially.
• Domicile is the hinge. Marilyn Monroe's successors lost a California claim because her executors had told courts and tax authorities for decades that she was a New Yorker, as the Ninth Circuit held in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012). Princess Diana's estate lost because English law recognizes no such right.
• Some states ignore domicile. Indiana and Washington apply their statutes to uses inside the state regardless of where the person died, and the Ninth Circuit allowed Washington's statute to be applied to Jimi Hendrix, a New York domiciliary, on the facts in Experience Hendrix L.L.C. v. HendrixLicensing.com Ltd., 762 F.3d 829 (9th Cir. 2014).
• The right is property that passes by will, trust, or statute. California and New York supply default heirs if the decedent did not transfer the right, and both require successors to register with the Secretary of State before they can recover (California) or sue (New York).
• It reaches commercial uses, not stories. Biographies, films, novels, news, and most art are exempt by statute or protected by the First Amendment. Merchandise, advertising, and endorsements are the core of the right.
• Digital replicas are the new frontier. California's 2024 amendments, New York's deceased-performer provision, and Tennessee's ELVIS Act add specific rules for AI-generated voices and likenesses of the dead, and those rules reach some expressive works that the older exemptions protected.
• The right has tax value. In the Michael Jackson estate case, the Tax Court rejected the estate's $2,105 valuation of his image and likeness and the IRS's figure of more than $400 million, and landed at roughly $4.15 million.

Why a right of publicity can outlive the person

The right of publicity began as a cousin of privacy. Privacy protects feelings: the embarrassment of seeing your face in an ad you never approved. Feelings die with the person, and the traditional rule, still the rule in many states, is that privacy claims do not survive death. If the right of publicity were only a privacy interest, there would be nothing left for heirs to own.

The doctrine changed course when courts began to treat the commercial value of identity as a kind of property. In Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), Judge Jerome Frank gave the right its name and recognized that baseball players could grant an exclusive license to use their photographs on gum cards. A right that can be licensed exclusively looks like property. The Supreme Court treated it the same way in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), comparing the state's interest in protecting a performer's "human cannonball" act to the interests behind patent and copyright law. Property ordinarily passes at death. So the question became whether this particular property does.

The general background is in Right of Publicity Basics and in The Right of Publicity: Name, Image, Likeness, Digital Replicas, and the Limits of Owning Yourself. This article focuses on what happens after the funeral.

Dracula's heirs and the California rule that did not last

The first major answer was no. Bela Lugosi played Dracula in Universal's 1931 film. After he died in 1956, Universal licensed the Dracula character, in Lugosi's distinctive look, for merchandise. His widow and son sued. In Lugosi v. Universal Pictures, 25 Cal. 3d 813 (Cal. 1979), the California Supreme Court held that the right to exploit one's name and likeness is personal and must be exercised, if at all, during the person's lifetime. Because Lugosi had not built a business around his Dracula persona while alive, nothing passed to his heirs.

The same day the court decided Guglielmi v. Spelling-Goldberg Productions, 25 Cal. 3d 860 (Cal. 1979), in which Rudolph Valentino's nephew sued over a fictionalized television film about the silent star. The court disposed of it under Lugosi, but Chief Justice Bird's concurrence, joined by three justices, said something that would matter more in the long run: a fictionalized film about a real person is protected expression, and the right of publicity cannot be used to stop it. That distinction between selling products and telling stories still organizes the field.

The California Legislature responded to Lugosi within five years. The Celebrity Rights Act, effective January 1, 1985, created a statutory post-mortem right for "deceased personalities" in former Civil Code § 990, with a 50-year term. In 1999 the statute was renumbered as § 3344.1 and the term extended to 70 years. That 1999 amendment, known as the Astaire Celebrity Image Protection Act, was itself a reaction to a case: in Astaire v. Best Film & Video Corp., 116 F.3d 1297 (9th Cir. 1997), Fred Astaire's widow lost a claim against a company that used clips of Astaire in instructional dance videos, because the Ninth Circuit read the statute's exemption for films and television programs to cover them. The rewritten exemption now speaks of works that are "fictional or nonfictional entertainment, or a dramatic, literary, or musical work."

Dr. King and the Georgia rule

Georgia went the other way, and its reasoning has been influential. A company sold plastic busts of Martin Luther King Jr. through newspaper advertisements, offering a portion of proceeds to charity. The King Center and the King estate sued. Answering certified questions in Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., 250 Ga. 135 (Ga. 1982), the Supreme Court of Georgia held that the right of publicity exists in Georgia, survives the person's death, and is inheritable, and that it does not depend on whether the person commercially exploited their identity during life.

That last point matters. Lugosi had suggested that only people who traded on their fame while alive leave anything behind. Dr. King had deliberately declined to commercialize his image. Under a lifetime-exploitation rule, the person who most carefully protected his dignity would leave his heirs the least protection. The Georgia court found that result perverse. Most post-mortem statutes enacted since then follow Georgia and require only that the identity have commercial value at or because of death, not that it was exploited during life.

Elvis and the war over descendibility

No estate has done more to shape this law than Elvis Presley's. After Presley died in August 1977, a poster company sold a memorial poster, and the licensee that had acquired merchandising rights from Presley's manager sued. The federal courts of appeals then split over whether Tennessee law let the right descend. The Second Circuit said yes in Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978). The Sixth Circuit, predicting Tennessee law, said no in Memphis Development Foundation v. Factors Etc., Inc., 616 F.2d 956 (6th Cir. 1980), reasoning that recognizing an inheritable right would create problems of duration and would reward heirs who had done nothing. The Second Circuit then deferred to the Sixth Circuit's reading of Tennessee law in a later round of the same dispute.

Tennessee settled the question two ways. Its legislature enacted the Personal Rights Protection Act of 1984, now at Tenn. Code Ann. § 47-25-1101 and following, which makes the right descendible "whether or not such rights were commercially exploited by the individual during the individual's lifetime" under Tenn. Code Ann. § 47-25-1103. And a Tennessee appellate court, in State ex rel. Elvis Presley International Memorial Foundation v. Crowell, 733 S.W.2d 89 (Tenn. Ct. App. 1987), held that Tennessee common law had recognized a descendible right all along, rejecting the Sixth Circuit's prediction.

Meanwhile, the Presley estate was testing the right's scope in other states. In Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981), the estate sued the producer of "The Big El Show," a touring stage production in which a performer recreated a Presley concert. The court predicted that New Jersey would recognize a descendible right of publicity, and it held that a show whose main purpose was to imitate Presley's performances, with little creative contribution of its own, was not the kind of expression that the First Amendment shields from a publicity claim. Two details are instructive. The court found a likelihood of success on the publicity claim but declined to enjoin the show on that ground because the estate had not shown irreparable economic harm, while it did grant relief on the estate's service mark and Lanham Act claims. And the court suggested that the legislature, not the courts, should set a duration, pointing to the copyright term as a possible guide. Both themes recur: estates often win on trademark theories when publicity theories are uncertain, and courts are uncomfortable inventing terms.

The state patchwork

Every post-mortem right in the United States is a state right. Congress has never enacted a general federal right of publicity, though it has considered digital replica bills, discussed below. The table summarizes the regimes that come up most often. It is a starting point, not a substitute for reading the current statute; legislatures amend these laws frequently.

States that have not recognized a post-mortem right, or have never squarely addressed one, include Minnesota, where Prince was domiciled when he died without a will in 2016, and Massachusetts, among others. Wisconsin's privacy statute does not extend after death. A few states, such as Utah under federal court interpretation, recognize a common law post-mortem right only if the person exploited their identity during life, as a federal court held in Nature's Way Products, Inc. v. Nature-Pharma, Inc., 736 F. Supp. 245 (D. Utah 1990).

Three features of the table drive most disputes.

Term. Fixed terms run from death, not from first use. Tennessee's is the exception under Tenn. Code Ann. § 47-25-1104: after the first decade the right continues indefinitely but ends on proof that the owner did not use it commercially for two years. An estate that lets a Tennessee identity lie fallow can lose it permanently.

Registration. California's statute provides that a successor in interest or licensee may not recover damages for a use that occurs before the successor or licensee registers a claim with the Secretary of State. New York's statute conditions the right to assert a claim on registration. Texas, Nevada, Oklahoma, and Arkansas have their own registries. The filing is cheap and short, and failing to make it is one of the most common avoidable losses in this field.

Domicile. Some statutes protect only people who were domiciled in the state at death (New York, and Ohio under the chapter that includes Ohio Rev. Code § 2741.02). Some protect anyone, as long as the infringing act happens in the state: Ind. Code § 32-36-1-1 applies to acts in Indiana "regardless of a personality's domicile, residence, or citizenship," and Washington's statute says much the same. California's statute is silent, but California courts apply the law of the decedent's domicile to decide whether a post-mortem right exists at all.

Where did the person live? Domicile and choice of law

The right of publicity is personal property, and the traditional conflict-of-laws rule is that the succession of personal property is governed by the law of the owner's domicile at death. California codifies that rule for personal property generally in Civil Code § 946, and New York's courts reach the same result by treating the right of publicity as personalty for choice-of-law purposes. The consequence is stark. If the decedent's domicile did not recognize a post-mortem right, then in most courts there was nothing to inherit, and a state with a generous statute cannot revive it.

Domicile is not the same as residence. A person can have several homes but only one domicile: the place where they are physically present with the intent to remain indefinitely, or to which they intend to return. Once established, a domicile continues until a new one is acquired. Courts look at the usual indicators: tax returns, voter registration, driver's licenses, where the person kept their papers and pets, where they told people they lived, and, critically for estates, where and how the will was probated.

Princess Diana and the Franklin Mint

Diana, Princess of Wales, died in 1997 domiciled in England. The Franklin Mint sold Diana dolls, plates, and jewelry. The trustees of her memorial fund sued in California under § 3344.1, arguing that the statute's reference to uses "in California" made it apply regardless of domicile. In Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002), the Ninth Circuit disagreed. The statute's territorial language describes the scope of the right, not which state's law decides whether a right exists. Under Civil Code § 946, the law of Diana's domicile governed, and English law recognizes no post-mortem right of publicity. The fund had nothing to enforce.

Marilyn Monroe and the right that did not exist yet

The Monroe litigation is the cautionary tale every estate lawyer knows. Monroe died in August 1962. Her will left the residue of her estate in a way that eventually placed most of it with her acting teacher Lee Strasberg, whose widow later formed Marilyn Monroe LLC to license her image. The LLC and its licensing agent sued photographers' archives that sold Monroe images.

The first problem was timing. In 1962 neither New York nor California recognized a post-mortem right. In Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007), the court held that a person cannot devise by will property that she does not own at death. Because Monroe had no post-mortem right of publicity when she died, her residuary clause could not pass one, whatever later statutes said.

California's Legislature responded within months. A 2007 amendment to § 3344.1 declared that the rights of personalities who died before January 1, 1985 are deemed to have existed at death and may pass through a residuary clause. That fixed the timing problem for California domiciliaries. It did not help Monroe's successors, because of the second problem: domicile. For decades Monroe's executors had taken the position, in probate filings and in proceedings with California's tax authorities, that she was domiciled in New York, which kept her estate out of California estate tax. When the LLC later argued that she had really been a Californian, the courts held it to its earlier position. In Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), the Ninth Circuit applied judicial estoppel: because Monroe's executors had consistently represented that she was domiciled in New York at her death, and benefited from that position, her successors could not now claim California's post-mortem right. New York recognized none at the time. The LLC lost. The Southern District of New York reached the same result in the parallel case, Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 589 F. Supp. 2d 331 (S.D.N.Y. 2008), holding the successors to the executors' long-standing New York domicile position. Judicial estoppel is an equitable doctrine, described by the Supreme Court in New Hampshire v. Maine, 532 U.S. 742 (2001), that prevents a party from winning on one position and then asserting the opposite when its interests change.

The lesson is not only about Monroe. Positions an estate takes for tax or probate reasons in the first year after death can control the publicity rights for the next 70 years. Domicile is a decision that should be made with publicity rights in view, not discovered later by litigators.

Albert Einstein and the judge-made term

Einstein died in 1955 domiciled in New Jersey. His will left his literary estate, through trustees, to the Hebrew University of Jerusalem, which for decades licensed his image as well. When General Motors ran a magazine ad placing Einstein's face on a muscular body with the caption "Ideas are sexy too," the university sued. New Jersey has no statute, only the common law right that Russen had predicted. In Hebrew University of Jerusalem v. General Motors LLC, 903 F. Supp. 2d 932 (C.D. Cal. 2012), the court predicted that the New Jersey Supreme Court would limit the common law post-mortem right to no more than 50 years after death, borrowing the life-plus-50 copyright term that Russen had mentioned. The ad ran in 2009, 54 years after Einstein's death. The claim failed, and the court also held that California's statute did not help a New Jersey domiciliary.

Common law post-mortem rights therefore carry a special risk: no one knows how long they last until a court says so.

Jimi Hendrix and the statutes that ignore domicile

Hendrix died in London in 1970, domiciled in New York, without a will. His father inherited, and the family business, Experience Hendrix, later fought an unlicensed merchandiser in Washington, Hendrix's home state as a young man. An earlier federal ruling had held that Washington's Personality Rights Act did not apply because New York law governed and recognized no post-mortem right. In 2008 Washington's legislature amended the statute, Wash. Rev. Code § 63.60.010, in Chapter 62, Laws of 2008, to apply "regardless of place of domicile or place of domicile at time of death."

The district court held the amended statute unconstitutional as applied, reasoning that Washington had no sufficient interest in the property rights of a New York decedent (Experience Hendrix, L.L.C. v. HendrixLicensing.com, Ltd., 766 F. Supp. 2d 1122 (W.D. Wash. 2011)). The Ninth Circuit reversed in Experience Hendrix, 762 F.3d 829. The controversy before it was narrow: sales in Washington of goods bearing Hendrix's likeness, and the estate's efforts to stop those sales. On those facts Washington had significant contacts, its choice of law was neither arbitrary nor unfair, and the dormant Commerce Clause was not offended. The court expressly declined to rule on broader applications.

Indiana's statute works similarly, and its 100-year term appears in Ind. Code § 32-36-1-8. It applies to acts or events in Indiana regardless of the personality's domicile, residence, or citizenship, and it reaches back to personalities who died before the statute took effect in 1994. Indiana is also home to long-established celebrity licensing agencies, which is part of why estates of people who never lived there have sued there.

The practical result is a split map. For a decedent domiciled in a state with no post-mortem right, an estate may still have a claim for uses in Indiana or Washington, while a defendant in California or New York may be free to use the same image. National advertisers and platforms cannot rely on the most favorable state, and estates should not assume a right exists everywhere because it exists somewhere.

Who owns the right after death

Once a post-mortem right exists, it is property, and property passes in the usual ways: by will, by trust, by contract during life, or by statute if nothing else controls. The details matter more than in most estates, because a single right of publicity often has several plausible owners.

Transfer during life. A living person can assign or license their publicity rights, and the transfer can extend past death where the governing statute treats the right as transferable. California's statute says the rights are "freely transferable or descendible, in whole or in part, by contract or by means of any trust or any other testamentary instrument." New York's § 50-f uses similar property language for its post-mortem right.

Transfer by will or trust. The cleanest approach is a specific bequest of "all rights of publicity, including rights in my name, voice, signature, photograph, and likeness" to a named person, trust, or entity. California's 2007 amendment confirms that a residuary clause can carry the right where there is no specific bequest, but relying on a residuary clause invites the kind of fight seen in the Monroe cases. A revocable trust that holds the rights, or an LLC owned by the trust, keeps ownership out of public probate and gives the estate a single licensing entity.

Statutory heirs. If the decedent did not transfer the right, California's statute names who receives it. The entire interest goes to a surviving spouse if there are no surviving children or grandchildren. If there are both, the spouse takes one-half and the children and grandchildren share the other half. If there is no spouse, the children and grandchildren take everything, and if none survive, the parents do. If no one in those classes survives and nothing was transferred, the right ends. These default heirs are not necessarily the same people who inherit the rest of the estate under the will or intestacy law. New York's statute follows a similar pattern.

Majority control. California allows holders of more than one-half of the interest to exercise the rights, which prevents a single small holder from blocking all licensing. It does not resolve fights over how money is split or who runs the program.

Tennessee's list. Tennessee's statute vests the right in the executors, assignees, heirs, or devisees, and its continuing-use rule means those owners must keep using it after the first ten years.

Licensing entities. Many estates place the rights in an LLC and engage a brand-management or licensing agency to run the program, on commission. That model works, but the estate should own the rights and license them to the agency, not assign them outright. For trademark rights that travel with the persona, and the ownership fights they generate, see Who Owns the Brand: Trademark Ownership Disputes Between Co-Founders, Bands, Licensees, and Distributors.

The planning side of these choices, including how publicity rights fit with copyrights, royalties, and digital accounts, is covered in Who Will Inherit Your Intellectual Property? and Digital Assets in Estate Planning: RUFADAA, Cryptocurrency, and Online Accounts. The executor's operating steps, from inventory to registration to a licensing program, are in Managing and Licensing a Deceased Person's Publicity Rights: A Practical Guide for Estates.

What the right lets heirs stop, and what it does not

A post-mortem right of publicity is narrower than many heirs believe. It is a right against commercial appropriation, not a right to control a reputation or a life story.

The core: products, merchandise, and advertising

California's statute reaches anyone who uses a deceased personality's name, voice, signature, photograph, or likeness "on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services" without consent. Remedies include the greater of $750 or actual damages, the defendant's profits attributable to the use, punitive damages, and attorney's fees for the prevailing party. The living-person statute, Cal. Civ. Code § 3344, has parallel structure, and the definitions of identity that courts developed under California law for living people, such as voice imitation 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 evocation of identity in White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992), show how far "likeness" and "voice" can reach. Those cases arose under common law for living plaintiffs. Whether a statutory post-mortem claim reaches a sound-alike or a robot evocation depends on the statute's words. California's post-mortem statute covers "voice," and New York's covers "voice" for deceased personalities, but neither statute adopts the full common law "identity" concept.

A bourbon ad with a cloned Wade Calloway voice is squarely within the core. So is a T-shirt with his face, a "Calloway Edition" guitar, or an AI chatbot that markets itself as "talk to Wade." The harder cases are the ones that tell stories.

The exemptions: stories, news, and art

California's statute excludes from "products, merchandise, or goods" a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement for any of those, if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work. It also exempts uses in connection with news, public affairs, sports broadcasts, and political campaigns. A biopic about Wade Calloway, a novel in which he appears, a documentary, a painting, and a news story about his estate are all outside the statute, at least until the digital replica amendments discussed below. Indiana's and Washington's statutes contain comparable lists. New York's § 50-f exempts a similar set of expressive works, including works of political, public interest, educational, or newsworthy value, and works of comment, criticism, parody, or satire.

There is a catch built into California's exemption: if a product or advertisement is embedded in an exempt work, the embedded commercial use is not exempt. A film is protected; a product tie-in using the deceased personality inside the film to sell soda is not.

The First Amendment backstop

Where a statute's exemptions run out, the Constitution takes over. The California Supreme Court's test comes from a post-mortem case. In Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001), the owner of the Three Stooges' rights sued an artist who sold T-shirts and lithographs bearing his realistic charcoal drawing of the trio. The court held that the First Amendment protects works that contain significant transformative elements, works in which the artist's own expression predominates over the celebrity's likeness. Saderup's drawings were skillful but literal; their value came from the Stooges' fame. The estate won.

Two years later, in Winter v. DC Comics, 30 Cal. 4th 881 (Cal. 2003), the same court held that comic-book half-worm characters based on two musicians were transformative as a matter of law. The transformative-use test has since been applied to video games, with courts finding realistic athlete avatars not transformative in Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013) and Keller v. Electronic Arts Inc., 724 F.3d 1268 (9th Cir. 2013). For docudramas, California's Court of Appeal held in de Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018) that a television series portraying a real actress, including invented dialogue, was protected expression. The Sixth Circuit protected a painting of Tiger Woods in ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003).

Titles get their own rule. In Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), Ginger Rogers challenged Federico Fellini's film Ginger and Fred. The Second Circuit held that a title using a celebrity's name is protected unless it is wholly unrelated to the work or simply a disguised advertisement, and it applied the same rule to her Oregon-law publicity claim. After Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), Rogers no longer protects a defendant that uses another's mark as a designation of source for its own goods. That limit matters for estates that hold trademarks in a decedent's name: a "Wade Calloway Whiskey" label is a source identifier, not an expressive title. The full First Amendment framework is in The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona, and the production-side workflow is in Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide.

Tribute acts, impersonators, and holograms

Russen remains the leading case on imitation performances, and its reasoning cuts against estates more often than its result suggests. A tribute show that adds commentary, narrative, or substantial new creative material looks more like expression. A show that is a literal recreation, marketed with the deceased star's name and image, looks more like appropriation. The same line will be drawn for holographic or AI-generated "performances." The 2012 Coachella appearance of a digital Tupac Shakur, and the posthumous hologram tours that followed for other artists, were produced with the cooperation of the artists' families or estates, which is the safe path. A rights holder who did not consent would have strong arguments that a realistic, ticketed recreation is a commercial use of identity rather than commentary on it.

Digital replicas: the new statutes

The most important development of the last few years is legislation aimed at AI-generated voices and likenesses. It matters for the dead in a particular way. Under the older exemptions, a film or sound recording was outside the right of publicity even if it put words in a dead actor's mouth. The new laws carve digital replicas out of those exemptions, at least in part.

California, AB 1836 (2024). Effective January 1, 2025, California amended § 3344.1 to impose liability on anyone who produces, distributes, or makes available a digital replica of a deceased personality's voice or likeness in an expressive audiovisual work or sound recording without consent, with damages of the greater of $10,000 or actual damages. "Digital replica" means a computer-generated, highly realistic electronic representation readily identifiable as the individual's voice or visual likeness, in a work in which the individual did not actually perform, or in which a real performance has been materially altered. The amendment preserves exceptions for news, public affairs, and sports broadcasts; for comment, criticism, scholarship, satire, and parody; for documentary, docudrama, historical, or biographical works that represent the individual as themselves, unless the use creates the false impression that the work is an authentic recording in which the individual participated; for fleeting or incidental uses; and for advertisements of those works. A biopic with a lightly retouched face is probably fine. A new studio album "sung" by a dead artist's cloned voice is not.

New York, § 50-f (2021). Alongside its deceased-personality right, New York created a separate right for "deceased performers," people domiciled in New York at death who regularly worked as actors, singers, dancers, or musicians. As enacted, the statute makes it actionable to use a deceased performer's digital replica in a scripted audiovisual work as a fictional character, or in a live performance of a musical work, without consent, if the use is likely to deceive the public into thinking it was authorized. The original text treated a conspicuous disclaimer as defeating that likelihood of deception. In June 2025 the legislature passed a bill (S8391/A8882) that would remove both the deception element and the disclaimer exemption and extend the rule to sound recordings; it was awaiting the Governor's action when this article was last updated, so anyone relying on the disclaimer route should confirm the current text.

Tennessee, the ELVIS Act (2024). The Ensuring Likeness Voice and Image Security Act, effective July 1, 2024, amended the Personal Rights Protection Act to protect "voice," defined to include both an actual voice and a simulation of it, and created liability for distributing an algorithm, software, tool, or other technology whose primary purpose or function is producing an individual's photograph, voice, or likeness without authorization. Because Tennessee's post-mortem right continues as long as it is used, the ELVIS Act may protect the voices of long-dead Tennessee artists whose estates have kept their rights active. The statute includes exemptions, to the extent protected by the First Amendment, for news, commentary, criticism, scholarship, satire, parody, fleeting or incidental uses, and portrayals of the individual as themselves in audiovisual works.

Federal proposals and union agreements. Congress has considered the NO FAKES Act in several versions. As introduced, it would create a federal digital replica right that continues after death for an initial term, extendable for limited additional periods if the right is actively used and the holder files a notice with the Copyright Office, up to a maximum of 70 years. It has not been enacted as of this writing. The Copyright Office's 2024 report on digital replicas recommended federal legislation. Separately, SAG-AFTRA's 2023 television and theatrical agreement requires consent for digital replicas of performers and, as summarized by the union, requires consent from a deceased performer's authorized representative, or from the union if no representative can be found. These are contract rules that bind signatory producers, not statutes, but they set the industry baseline.

The full digital replica analysis, including deepfake statutes that apply to the living, is in Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law.

Federal fallbacks: trademark and false endorsement

Because state publicity rights are uncertain and uneven, estates routinely plead federal claims too.

False endorsement. Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), prohibits uses of any word, name, symbol, or device that are likely to cause confusion about a person's sponsorship or approval of goods. It does not depend on state law, so it reaches uses in states with no post-mortem right. In Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008), the estate of John Facenda, the narrator known as "the Voice of God" for NFL Films, sued over use of his recorded voice in a program promoting a video game. The Third Circuit treated his voice as a protectable mark for false endorsement purposes, vacated summary judgment for the estate on the Lanham Act claim because likelihood of confusion was a fact question for trial, and affirmed summary judgment for the estate under Pennsylvania's post-mortem statute, holding that the claim was not preempted by copyright law even though NFL Films owned the recordings. The case shows both the value of the federal claim and its weakness: confusion must be proved, and it becomes harder to prove as the decedent's audience ages.

Trademarks in the name itself. Estates commonly register the decedent's name, signature, or image as trademarks for licensed goods. Federal registration law draws an interesting line. 15 U.S.C. § 1052(c) bars registration of a name, portrait, or signature identifying a particular living individual without written consent, but after death that consent requirement ends, except for a deceased President during the life of a surviving spouse. Section 2(a) still bars marks that falsely suggest a connection with persons living or dead, under the test applied in University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 703 F.2d 1372 (Fed. Cir. 1983), and estates use oppositions on that ground against opportunistic filers. Once registered, the marks give the estate infringement and dilution claims that do not depend on domicile. Elvis Presley Enterprises used its marks to stop a Houston nightclub called "The Velvet Elvis" in Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188 (5th Cir. 1998), and Experience Hendrix won trademark claims over "Hendrix" domain names in the same litigation that tested Washington's statute.

Trademarks have their own disciplines: they must be used in commerce, licensees must be controlled, and an assignment must carry goodwill under 15 U.S.C. § 1060. An estate that registers marks and then licenses them loosely risks a naked-licensing challenge. For registration of personal names generally, see Trademarking Your Own Name.

Copyright interplay. A publicity claim based on a work's content can be preempted by 17 U.S.C. § 301 when it seeks only to control the reproduction of a copyrighted work. Facenda held that a claim targeting use of a voice in advertising was not preempted. The distinction matters to estates that do not own the copyrights in a decedent's films or recordings: the studio or label may own the footage, while the estate owns the persona, and neither can fully exploit a commercial tie-in without the other.

The tax side: what a dead person's face is worth

A post-mortem right of publicity that exists under state law is property included in the gross estate under 26 U.S.C. § 2033, valued at fair market value as of death under 26 U.S.C. § 2031 and taxed under 26 U.S.C. § 2001 to the extent the taxable estate exceeds the exclusion amount sheltered by the unified credit in 26 U.S.C. § 2010.

The leading valuation case is Estate of Jackson v. Commissioner, T.C. Memo. 2021-48. On its return, Michael Jackson's estate valued his image and likeness at $2,105, based on an appraisal reasoning that his reputation at death had made him nearly unmarketable to advertisers. The IRS's notice of deficiency valued it at more than $434 million, and it argued for about $161 million at trial. The Tax Court rejected both extremes. It held that the image and likeness had to be valued at its highest and best use, considered only income streams that a hypothetical buyer could reasonably have foreseen at death, separated income attributable to copyrights and other assets the estate owned separately, and valued the image and likeness at roughly $4.15 million. The court noted, in a footnote citing press reports, that Robin Williams reportedly restricted the use of his image for 25 years after death and donated the remaining interest to a charitable foundation, an approach that reduces both exploitation and estate tax.

The Jackson case teaches three things. First, an estate cannot take a lowball position on publicity rights without a defensible appraisal. Second, post-death success is not automatically attributed back to the date of death; the test is what was reasonably foreseeable. Third, the domicile choice cuts both ways: a state with a strong post-mortem right gives the estate something valuable to license and something valuable to tax. The broader transfer-tax framework is in The Federal Estate and Gift Tax: Exemptions, Portability, and Lifetime Transfer Planning.

Open questions and splits

Several questions remain unsettled, and they are the ones most likely to be litigated in the next decade.

Can a state apply its statute to a non-domiciliary? Indiana and Washington say yes for uses within their borders. Experience Hendrix upheld Washington's statute on narrow facts but left open whether a broader application, such as a suit in Washington over sales that occur mostly elsewhere, would survive due process and dormant Commerce Clause challenges. Other courts, following Cairns, read silent statutes to defer to domicile law. National users should assume that at least two states will protect almost any famous person who died within the last century.

How long do common law rights last? Hebrew University chose 50 years for New Jersey. Georgia has never set a term. A court asked to decide the question for the first time has nothing to work from but analogy, which means an estate relying on a common law right should expect a fight about duration.

Does a post-mortem statute reach voice imitations and evocations? Midler, Waits, and White were common law cases for living plaintiffs. Statutory post-mortem rights are defined by their lists. The ELVIS Act and California's digital replica amendments expand those lists for AI-generated material, but a human sound-alike in an ad for a long-dead singer may still fall into gaps.

How do digital replica rules interact with the First Amendment? California and New York now regulate some uses inside expressive works. The exemptions for documentaries, parody, and commentary are meant to protect the constitutional core, but a court has yet to decide whether a fictional film featuring a realistic digital replica of a dead actor can be restricted consistently with Guglielmi's reasoning and the transformative-use cases.

What is the right worth? The Jackson decision is a single trial-level valuation. The IRS and estates will keep fighting about method, and the result drives estate tax, spousal elective share computations, and buyouts among co-owners.

Practical implications for each side

For estates and heirs. Determine domicile early, and do not take positions in probate or tax filings that undercut the domicile you will need later. Make sure the right was actually transferred: by specific bequest, by trust, or, failing that, by statute. Register in California and New York if those states' laws govern, and consider the voluntary registries in Texas and Nevada. Keep Tennessee rights in active use. Build trademarks alongside publicity rights, and decide on a written digital replica policy before the first AI request arrives. The step-by-step version is in the companion guide, and the forms, from registration worksheets to enforcement letters, are in Estate Publicity Rights Toolkit: State Registrations, Licensing Terms, and Enforcement Letters.

For users: advertisers, merchandisers, filmmakers, and AI developers. Classify the use first. Advertising, merchandise, endorsements, and products that trade on the persona need a license. Biographies, documentaries, news, commentary, and genuinely transformative art usually do not, though digital replicas inside expressive works now need a closer look. Then identify the decedent's domicile, the applicable term, the registered owner, and any states (Indiana, Washington) that apply their law regardless of domicile. The clearance workflow is in Post-Mortem Publicity Rights Clearance Checklist: A Practical Checklist, and the general clearance tasks are in Right of Publicity Clearance Checklist: A Practical Checklist.

For planners and living clients. Anyone whose name or face has commercial value should decide who will control it, whether they want it exploited at all, and what limits should apply to digital recreations. A will or trust can restrict uses, set a term shorter than the statutory maximum, or direct the rights to charity. Domicile is a planning variable, but changing it for publicity reasons alone is rarely practical; what matters is documenting it consistently.

An extended worked example: the Calloway voice

Return to the Copperline Spirits ad and work through it as the estate's lawyer and the agency's lawyer would.

Facts. Wade Calloway died in March 2017 at his fishing cabin in Montana. He owned a farm outside Franklin, Tennessee, where he was registered to vote and held his driver's license, and a condo in Los Angeles where he spent four to five months a year recording. His will, signed in 2014 in Nashville, left "all of my intellectual property, including my rights of publicity in my name, voice, signature, photograph, and likeness," to the trustee of the Wade Calloway Trust, with income to his three children. He married his second wife in 2015 and did not update the will. His executor, a Montana friend, opened probate in Montana, and the petition described Calloway as "of Flathead County, Montana." In 2018 the trustee formed Calloway Legacy LLC and contributed the publicity rights to it. In 2025 the agency produced the AI voice ad.

Question 1: Did a post-mortem right survive? The answer depends on domicile. Tennessee recognizes a descendible right. Montana has no post-mortem statute, and no Montana appellate decision recognizes a common law post-mortem right. California's statute will not apply to a non-domiciliary. So the estate needs Tennessee domicile. The voter registration, license, farm, and the will's Nashville execution all point to Tennessee. The Montana probate petition points the other way, and the agency will argue, citing Greene Archives, that the estate should be held to it.

The estate's response is that judicial estoppel requires a position that was accepted by a court and produced an unfair advantage. A domiciliary probate in Montana may have been a convenience chosen by a local executor, not a contested finding, and it produced no tax benefit, because Tennessee's inheritance tax had been repealed for deaths after 2015 and Montana imposes no estate tax. That is a respectable argument, but it is weaker than it would be had the estate never filed the Montana petition. The cleanest fix, if it is still available, is to correct the record in the probate court and open a Tennessee proceeding.

Question 2: Who owns it? If Tennessee law governs, the will's specific bequest passed the right to the trust, and the trust transferred it to the LLC. The second wife's claim to "half" borrows California's statutory heir rule, which applies only when there was no transfer and only under California law. Her real remedy, if any, lies in probate: a surviving spouse's elective share against the will, which in many states is computed on the value of the estate, possibly including the publicity right. That is a claim against the estate's value, not a veto over licensing.

Question 3: Is the right still alive? Under Tenn. Code Ann. § 47-25-1104, the initial ten-year term runs until March 2027. After that, the right continues only if the LLC keeps using Calloway's name and likeness commercially, so the estate should keep a record of every license and sale.

Question 4: Is the ad a violation? A bourbon ad is advertising. The cloned voice is a simulation of Calloway's voice, which the ELVIS Act made part of the protected identity effective July 1, 2024. No news, commentary, or portrayal-as-self exemption fits. The ad also invites a Lanham Act claim under 15 U.S.C. § 1125(a), because "Wade" appears to endorse Copperline. If the spot airs nationally, Indiana and Washington would apply their own statutes to airings in those states regardless of domicile, which helps the estate even if the Tennessee domicile fight goes badly.

Question 5: What about the voice vendor? The ELVIS Act's tool provision targets technology whose primary purpose or function is producing an individual's likeness or voice without authorization. A general-purpose voice platform is a harder target than a tool marketed as "clone any singer." The agency's contract with the vendor should contain a warranty and indemnity on this point, and probably does not.

Outcome. On these facts, the agency should pull the test cut and either negotiate a license, with approval rights for the script and a digital replica addendum, or recast the ad without Calloway. The estate should register its claim in the Texas registry if it expects Texas disputes, correct the domicile record, adopt a digital replica policy, and use the episode to file trademark applications for CALLOWAY in the categories it licenses. The second wife's claim should go to the probate court, where it belongs.

Common mistakes

1. Assuming the right exists because the person was famous. Fame is necessary but not sufficient. Domicile at death controls in most courts, and many states recognize no post-mortem right.
2. Taking domicile positions casually. The Monroe estate's tax position cost it the publicity right decades later. Probate petitions, tax returns, and press statements are all evidence.
3. Failing to register. In California an unregistered successor cannot recover damages for uses before registration; in New York the claim cannot be asserted at all.
4. Leaving the right to the residuary clause. It may work in California, but it invites disputes elsewhere and is the exact problem the Monroe litigation exposed.
5. Letting a Tennessee right go dormant. After the first ten years, two years of non-use can end the right permanently.
6. Treating every film or book as infringement. Estates that send demand letters to biographers and documentarians lose credibility, and in states with anti-SLAPP statutes they can pay the other side's fees. See Anti-SLAPP Statutes and Strategic Litigation Against Public Participation.
7. Ignoring the federal claims. A Lanham Act false endorsement claim and registered trademarks can protect an estate where state law is weak.
8. Assuming AI voices are safe because no recording was copied. Copyright may be irrelevant, but voice is part of the protected identity in California, New York, and Tennessee, and digital replica rules now apply in some expressive works.

Frequently asked questions

Can I use a photograph of a dead celebrity in a documentary? Usually yes, as far as publicity law is concerned. Documentaries are expressive works, exempt under the major statutes and protected by the First Amendment. You still need a license from whoever owns the copyright in the photograph, and you should avoid using the image in ways that suggest a product endorsement.

Does Tennessee's right really last forever? It can. After the first ten years, the right continues as long as the owner keeps using it commercially, and it ends on proof of two years of non-use. A well-managed estate can keep it alive indefinitely.

If a person was domiciled in a state with no post-mortem right, is their image free to use? Not everywhere. Indiana and Washington apply their statutes to uses within those states regardless of domicile, and federal false endorsement and trademark claims do not depend on state publicity law. The risk is lower, not zero.

Do ordinary people have post-mortem publicity rights? In some states. California and New York protect only people 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. In practice, claims by estates of non-celebrities are rare and damages are small, but the statutory minimums in some states make them possible.

Can heirs stop an unflattering biography or film? Generally no. The right of publicity does not protect reputation, and defamation claims generally do not survive death. An expressive work about a real person is protected unless it is a disguised advertisement or, under the newer rules, uses a deceptive digital replica.

Who do I ask for permission? Start with the state registries in California and New York, which list registered claimants. Then look for trademark registrations in the decedent's name and the licensing agency that represents the estate. If ownership is unclear, a license from one claimant may not protect you from another, so get warranties and an indemnity.

Can a person restrict how their identity is used after death? Yes, through a will, trust, or entity structure that limits licensing, prohibits digital replicas, or sets a shorter term. The restriction binds the heirs who take the right; it does not bind strangers unless the underlying state right exists and is enforced.

Key takeaways

• The post-mortem right of publicity is a state property right whose existence usually depends on the law of the decedent's domicile at death.
• Durations range from 20 years to 100 years, and Tennessee's can continue indefinitely with use.
• Registration in California and New York is a condition of recovering or suing, and other states offer registries with evidentiary benefits.
• The right reaches merchandise and advertising, not storytelling, though digital replica statutes now regulate some uses in films and recordings.
• Estates should pair publicity rights with trademarks and Lanham Act claims, and should value the right defensibly for estate tax purposes.
• Users should classify the use, identify the domicile and owner, and remember that Indiana and Washington ignore domicile for uses within their borders.

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

• Right of Publicity Basics: the doctrine for living people, with a short survey of post-mortem terms.
• The Right of Publicity: Name, Image, Likeness, Digital Replicas, and the Limits of Owning Yourself: elements, defenses, and choice of law in depth.
• The Right of Publicity and the First Amendment: Transformative Use, Newsworthiness, and the Limits of Owning a Persona: the constitutional limits that protect biographies and art.
• Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law: the AI and deepfake statutes in full.
• Who Will Inherit Your Intellectual Property?: how publicity rights fit with copyrights, patents, and trademarks in an estate plan.
• Who Owns the Brand: Trademark Ownership Disputes Between Co-Founders, Bands, Licensees, and Distributors: ownership fights over the trademarks that often accompany a persona.
• The Federal Estate and Gift Tax: Exemptions, Portability, and Lifetime Transfer Planning: the tax system that values the right at death.
• Anti-SLAPP Statutes and Strategic Litigation Against Public Participation: the fee risk for estates that sue over expressive works.

Related Guides

• Managing and Licensing a Deceased Person's Publicity Rights: A Practical Guide for Estates: the executor's step-by-step program.
• Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide: production-side clearance for films, books, and games.
• Licensing and Protecting Name, Image, and Likeness: A Practical Guide: license structure and enforcement for living and deceased individuals.
• Probate and Estate Administration: A Practical Guide for Executors: the probate process through which the right passes.

Related Checklists

• Post-Mortem Publicity Rights Clearance Checklist: A Practical Checklist: clearance steps for filmmakers, advertisers, and AI developers.
• Right of Publicity Clearance Checklist: A Practical Checklist: general clearance for any identity use.
• Expressive Work Right of Publicity Risk Checklist: A Practical Checklist: risk factors for biopics, docudramas, and art.

Related Toolkits

• Estate Publicity Rights Toolkit: State Registrations, Licensing Terms, and Enforcement Letters: registration worksheets, license terms, and demand letters for estates.
• Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands: releases and takedown forms.
• Publicity and Free Speech Toolkit: Transformative Use Memos, Newsworthiness Analyses, and Anti-SLAPP Motions: defense papers for expressive users.