# Are You Experienced, After Death? The Ninth Circuit, Jimi Hendrix, and the Post-Mortem Right of Publicity

> Experience Hendrix v. HendrixLicensing.com upheld Washington's post-mortem publicity statute as applied to a New York-domiciled rock legend, exposing how a fractured state-law patchwork now governs the dead.

Topic: Right of Publicity  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/experience-hendrix-post-mortem-right-of-publicity/


In *Experience Hendrix, L.L.C. v. HendrixLicensing.com, Ltd.*, Nos. 11-35858 & 11-35872 (9th Cir. Jan. 29, 2014) (opinion amended Aug. 8, 2014, on denial of rehearing), the United States Court of Appeals for the Ninth Circuit confronted a question that grows more consequential with every passing celebrity death: may a state extend a property right in a famous person's identity decades beyond the grave, and reach a decedent who never lived or died there? The panel held that Washington's Personality Rights Act (WPRA), Wash. Rev. Code ch. 63.60, could constitutionally be applied to Jimi Hendrix (who died in 1970 while domiciled in New York, a state that then recognized no post-mortem right of publicity at all) because the actual controversy before the court involved the loss of sales, inside Washington, of Hendrix merchandise licensed by the defendants, and the State therefore had a legitimate interest in applying its own law to that controversy. In doing so, the court reversed the district court's holding that the statute's post-mortem provisions were unconstitutional, while leaving intact a body of doctrine that remains, even now, a patchwork.

## At a glance

- **Case:** *Experience Hendrix, L.L.C. v. HendrixLicensing.com, Ltd.* (defendants: HendrixLicensing.com Ltd., a Nevada corporation d/b/a Hendrix Artwork, together with Andrew Pitsicalis and Christine Ruth Flaherty)
- **Court:** U.S. Court of Appeals for the Ninth Circuit
- **Docket:** Nos. 11-35858, 11-35872
- **Decided:** January 29, 2014; opinion amended August 8, 2014
- **Posture:** Cross-appeals from the U.S. District Court for the Western District of Washington, following trademark and right-of-publicity proceedings between the Hendrix family entities and a licensing operation run by Andrew Pitsicalis.
- **Core holding:** The WPRA recognizes a descendible, post-mortem right of publicity, and applying that right to Hendrix did not offend due process, the Full Faith and Credit Clause, or the dormant Commerce Clause on the limited facts presented: namely, the loss of sales within Washington of Pitsicalis-licensed goods.

## The post-mortem right of publicity, and whether it descends

The right of publicity protects a person's commercial interest in his or her own identity: name, voice, signature, photograph, likeness. During life, the right is uncontroversial in most jurisdictions. The harder question is what happens at death. A right of publicity that vanishes the moment its holder dies is, for the heirs of a Jimi Hendrix or an Elvis Presley, nearly worthless precisely when the identity is most valuable. The descendibility question (whether the right survives death and passes to an estate as a transferable property interest) is therefore the doctrinal hinge on which the entire post-mortem regime turns.

Washington answered that question by statute. The WPRA, originally enacted in 1998, declares that "every individual or personality" has "a property right in the use of his or her name, voice, signature, photograph, or likeness," and that this right "exists whether or not it was commercially exploited by the individual or the personality during the individual's or the personality's lifetime" and "does not expire upon the death of the individual or personality." The Act draws a key distinction: an ordinary *individual's* right endures ten years after death, while a *personality's* right (that of someone whose identity had commercial value at death) endures seventy-five years. Hendrix, plainly, was a personality. The dispute was never really whether his right was descendible under Washington's text; it was whether Washington could constitutionally apply that text to him at all.

That tension was sharpened by the Act's 2008 amendment. After an earlier district court ruling cast doubt on the statute's reach, the Washington legislature amended the WPRA to state that the chapter "is intended to apply to all individuals and personalities, living and deceased, regardless of place of domicile or place of domicile at time of death," and that the property right does not expire at death "regardless of whether the law of the domicile, residence, or citizenship of the individual or personality at the time of death or otherwise recognizes a similar or identical property right." This was, in effect, a legislative declaration that Washington's law would follow the infringement, not the decedent. The constitutional objections in *Experience Hendrix* were aimed squarely at that choice.

## Duration, domicile, and the state-law patchwork

The deepest lesson of *Experience Hendrix* is structural. There is no federal right of publicity. The doctrine is a creature of state common law and state statutes, and the states do not agree: not on whether the right survives death, not on how long it lasts, and not on which state's law applies to a roaming, decades-old identity.

The durational variance alone is striking. Indiana and Oklahoma protect the post-mortem right for one hundred years; California for seventy years; Ohio for sixty; Kentucky for fifty; New York, which finally enacted a statutory post-mortem right for deceased performers in 2020 (effective 2021), for forty; and Tennessee for a baseline of ten years that continues so long as the identity is commercially exploited. Washington itself runs to seventy-five years for personalities. At the time Hendrix died, and for years after, New York, his domicile, recognized no post-mortem right whatsoever.

This is why the choice-of-law question was not academic. Under the traditional rule, the law of the decedent's domicile at death governs the descendibility of a right of publicity, because the right is treated as a form of intangible personal property that passes through the estate. Apply that rule to Hendrix and his heirs get nothing: New York gave them nothing to inherit in 1970. Washington's 2008 amendment tried to override the domicile rule by statutory fiat. The district court found that override unconstitutional. A State, it reasoned, cannot manufacture a property right that the decedent's home jurisdiction never granted and then project it nationwide.

The Ninth Circuit took a narrower path, and that narrowness is the holding's enduring contribution. It declined to bless the WPRA's full extraterritorial sweep. Instead, it asked whether Washington had "significant contacts" with the *actual controversy* before the court, and found that it did: that controversy, which reached the court on Pitsicalis's declaratory judgment counterclaims, involved the loss of sales in Washington of Pitsicalis-licensed goods. As applied to those in-state transactions, applying Washington's law violated neither due process and full faith and credit (because Washington had a legitimate interest in conduct occurring inside its borders) nor the dormant Commerce Clause (because the regulated transactions were not "wholly outside" the State and imposed no impermissible burden on interstate commerce). The court pointedly reserved judgment on whether the statute could reach conduct with no Washington nexus. The post-mortem right was upheld, but only to the extent the dispute touched Washington soil.

## The rise of AI digital replicas of the dead

If *Experience Hendrix* exposed the fragility of the post-mortem regime in the era of T-shirts and posters, generative AI has since detonated it. A convincing synthetic Hendrix (his voice, his face, his playing) can now be conjured without anyone selling a single physical good in any particular state. The "significant contacts" analysis that saved the WPRA's application in 2014 becomes far harder to administer when the infringing artifact is a model output streamed everywhere and nowhere.

Tennessee, home to both Nashville and Graceland, moved first. The Ensuring Likeness, Voice, and Image Security Act of 2024, the "ELVIS Act," was signed March 21, 2024, and took effect July 1, 2024. It amended Tennessee's existing publicity statute (the Personal Rights Protection Act, under which Tennessee courts had recognized a descendible post-mortem right as early as the 1980s) to add *voice* as a protected attribute, defined as a sound "readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual," and to make it separately actionable to publish, perform, distribute, transmit, or otherwise make a person's voice or likeness available to the public knowing the use was unauthorized. Most novelly, the ELVIS Act creates liability not only for the user but for anyone who distributes an algorithm or technology whose "primary purpose or function" is the unauthorized production of such replicas. That is a deliberate reach toward the tool-makers, not merely the tool-users. Because Tennessee's right is descendible, these protections extend to the dead. The King, in other words, is statutorily protected against his own deepfake.

## Open questions

*Experience Hendrix* answered less than it appears to. The court upheld the WPRA only as applied to Washington sales and expressly declined to decide whether Washington could reach a decedent's identity nationwide. That reservation leaves the central conflict unresolved: the traditional domicile-governs-descendibility rule versus statutes that follow the infringement. If a deceased New Yorker's likeness is misused by an out-of-state actor, whose law governs, and can a state like Washington or Tennessee reach conduct that merely streams into its borders? Generative AI presses every one of these seams at once: where does an AI-generated voice clone "occur," and which sovereign's clock (ten years, forty, seventy-five, a hundred) measures whether the right has already expired?

## Implications

- **Forum and choice of law are everything.** Because durations and descendibility rules diverge so sharply, estates litigate where the law is friendliest and where defendants have contacts. *Experience Hendrix* validates that strategy for in-state infringement.
- **The domicile rule is under pressure but not dead.** The Ninth Circuit sidestepped, rather than overruled, the principle that the decedent's home state governs descendibility; estate planners cannot assume a favorable forum statute will travel.
- **Statutes are racing ahead of the case law.** Tennessee's ELVIS Act and New York's 2020 enactment show legislatures, not courts, defining the post-mortem right for the AI era.
- **Tool-maker liability is the new frontier.** The ELVIS Act's reach toward those who distribute replica-generating technology signals an enforcement model aimed upstream, at developers.
- **A federal right of publicity grows more attractive.** Each new state statute deepens the patchwork that *Experience Hendrix* exposed, strengthening the case for a uniform national standard.

## Frequently asked questions

**Does the right of publicity survive a person's death?** It depends on the state. Roughly two dozen states recognize a descendible post-mortem right by statute or common law; others recognize none. Washington's statute, at issue in *Experience Hendrix*, expressly provides that the right does not expire at death and lasts up to seventy-five years for commercially valuable "personalities."

**Why did Hendrix's New York domicile matter?** Under the traditional rule, the law of the decedent's domicile at death governs whether a right of publicity is descendible. New York recognized no post-mortem right in 1970, so the defendants argued the Hendrix estate had inherited nothing. The Ninth Circuit allowed Washington's law to apply instead, but only because the controversy before it concerned sales of the defendants' Hendrix merchandise inside Washington.

**What does the ELVIS Act add for deceased celebrities?** Tennessee's 2024 ELVIS Act expanded the state's descendible publicity right to cover *voice*, including a "simulation of the voice of the individual," and reached technology distributors whose tools are primarily designed to produce unauthorized replicas. Those protections extend to deceased Tennesseans.

## Authorities and sources

- *Experience Hendrix, L.L.C. v. HendrixLicensing.com, Ltd.*, Nos. 11-35858 & 11-35872 (9th Cir. Jan. 29, 2014), opinion (Ninth Circuit): https://cdn.ca9.uscourts.gov/datastore/opinions/2014/01/29/11-35858.pdf
- *Experience Hendrix, L.L.C. v. HendrixLicensing.com, Ltd.*, order and amended opinion (9th Cir. Aug. 8, 2014), amending the opinion sua sponte to remove footnote 6: https://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/08/11-35858.pdf
- "Experience Jimi Hendrix, Post-Mortem Publicity Rights" (National Law Review): https://natlawreview.com/article/experience-jimi-hendrix-post-mortem-publicity-rights-experience-hendrix-llc-et-al-v
- Washington Personality Rights Act, Wash. Rev. Code ch. 63.60: https://app.leg.wa.gov/rcw/default.aspx?cite=63.60
- Wash. Rev. Code § 63.60.040 (exclusivity and duration): https://app.leg.wa.gov/rcw/default.aspx?cite=63.60.040
- "The King is Back (in the Digital Era): The ELVIS Act, Generative AI and Right of Publicity" (Proskauer Rose): https://www.proskauer.com/blog/the-king-is-back-in-the-digital-era-the-elvis-act-generative-ai-and-right-of-publicity
- "The ELVIS Act: Tennessee Shakes Up Its Right of Publicity Law and Takes On Generative AI" (Latham & Watkins): https://www.lw.com/admin/upload/SiteAttachments/The-ELVIS-Act-Tennessee-Shakes-Up-Its-Right-of-Publicity-Law-and-Takes-On-Generative-AI.pdf
- "'Delebs' and Postmortem Right of Publicity" (ABA Landslide): https://www.americanbar.org/groups/intellectual_property_law/resources/landslide/archive/delebs-postmortem-right-publicity/
- "New York Passes Post-Mortem Right of Publicity Law" (Fish & Richardson): https://www.fr.com/insights/thought-leadership/blogs/new-york-passes-post-mortem-right-of-publicity-law