Intellectual Property Attorney

Postmortem Rights Of Publicity

The death of Roger Richman, an agent who specialized in representing the estates of deceased celebrities, reminds us that postmortem rights of publicity did not exist until relatively recently and are still only protectable in a minority of states.

As discussed in a previous blog here, thirty-one states (as well as Puerto Rico) currently recognize the right of publicity as a distinct, protectable property right under common law and/or statute. 1 J. Thomas McCarthy,
The Rights of Publicity and Privacy § 6:3 (2nd ed. 2013). However, only 20 states recognize a postmortem right of publicity.
Id. § 9:18. Whether or not rights of publicity die with the person depend on where the deceased was domiciled (i.e., maintained a permanent residence) at the time of death.

Not surprisingly, California and Tennessee (home to Elvis) are among those states with express statutes extending the right to publicity beyond the grave. In fact, Mr. Richman was influential in getting the California statute enacted in 1985. That statute grants heirs rights lasting 70 years from death. The duration of the right varies from state to state, typically ranging from 20 to 100 years.

Notably, New York—home to innumerable celebrities and a pioneer in the protection of rights of publicity in general—does not recognize a postmortem right.

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