# Post-Mortem Right of Publicity

> What happens to the right of publicity after death — which states recognize post-mortem rights, how long they last, and how estates license them.

Guide  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/guides/post-mortem-right-of-publicity/


<div class="quick-answer"><p><strong>Quick answer:</strong> The post-mortem right of publicity is the legal right to control commercial use of a deceased person's name, image, voice, and likeness. There is no federal version, so whether it exists — and for how long — depends on the state where the person was domiciled when they died. California protects it for 70 years ([Civil Code § 3344.1](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=3344.1)), Indiana for 100 years, New York for 40 years for performers and personalities (a 2020 law), and Tennessee for at least 10 years and potentially forever with continued use. Many states recognize no post-mortem right at all, meaning a celebrity's estate has nothing to license or enforce.</p></div>

Elvis Presley, Prince, Bob Marley, and Michael Jackson still earn tens of millions a year — long after death — because their estates control the commercial use of their names and faces. But that control is not automatic, and it is not uniform. As you will see, Marilyn Monroe's estate is the cautionary counterexample: it lost the right entirely on a technicality of where she died. This guide explains what the post-mortem right of publicity is, which states recognize it, how long it lasts, why the state a person *died in* can decide everything, and what heirs and estate planners need to do to preserve the value of an identity.

## What is the post-mortem right of publicity?

The **right of publicity** is the right to control — and profit from — the commercial use of your identity: your name, image, likeness, voice, signature, and other recognizable attributes. While you are alive, it protects you against advertisers and merchandisers who exploit your persona without permission. The **post-mortem** (or *descendible*) right is the same right, surviving death and passing to your heirs or estate as a form of property.

The key idea is that in states recognizing it, publicity is treated as an **asset**, not just a personal dignity interest. Like a copyright or a trademark, it can be:

- **Inherited** through a will or by intestate succession;
- **Assigned** to an estate, family LLC, or licensing company;
- **Licensed** for advertising, merchandise, biopics, and endorsements; and
- **Enforced** through infringement lawsuits.

If you are new to the underlying doctrine, start with the [right of publicity and NIL hub](/guides/right-of-publicity-nil-guide/), which covers the living right, name-image-likeness (NIL) deals, and how these rights fit together.

## Does the right of publicity survive death everywhere?

No — and this is the single most important thing to understand. There is **no federal right of publicity**. It is entirely a creature of state law, and the states are split roughly down the middle on whether the right survives death at all.

- **States that recognize a post-mortem right** (about half) do so either by statute — California, Indiana, Tennessee, New York, Texas, Washington, Nevada, Ohio, Florida, and others — or through common law.
- **States that do not** either expressly limit the right to living persons or have simply never held that it is descendible. Historically, New York was the most famous holdout, protecting only the living until it enacted a post-mortem law in 2020.

Because the rules differ so sharply, the same unlicensed poster of a dead celebrity can be perfectly legal in one state and actionable in another. For a jurisdiction-by-jurisdiction breakdown, see our [right of publicity by state](/guides/right-of-publicity-by-state/) guide.

## How long does the post-mortem right last?

Where the right does survive, its **duration** ranges from a decade to a century. The leading regimes:

- **California — 70 years.** Under **Civil Code § 3344.1** (the "Astaire Celebrity Image Protection Act"), the right survives 70 years after death and is freely transferable and descendible. California's deep entertainment-industry ties make it the most litigated post-mortem regime. For the full state-specific framework, see [right of publicity in California](/guides/right-of-publicity-california/).
- **Indiana — 100 years.** Under **Indiana Code § 32-36-1**, Indiana offers the longest and arguably broadest protection in the country — 100 years after death, covering name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, and mannerisms. Notably, Indiana's statute can apply to conduct within the state regardless of where the person was domiciled, which is why many licensing companies are organized there.
- **Tennessee — 10 years and potentially indefinite.** Under the **Personal Rights Protection Act of 1984**, the right lasts a minimum of 10 years after death and continues **as long as the identity is continuously exploited commercially**, terminating only after two years of non-use. This was written with Elvis Presley in mind, and Tennessee's 2024 **ELVIS Act** (Ensuring Likeness Voice and Image Security Act) extended protection to voice and AI-generated replicas.
- **New York — 40 years.** New York's **Civil Rights Law § 50-f**, effective in 2021, created a post-mortem right lasting 40 years after death for "deceased performers" and "deceased personalities," and separately targets unauthorized digital replicas in expressive works.

Other statutory terms include Texas (50 years), Washington (up to 75 years for individuals whose identity has commercial value), Nevada (50 years), Ohio (60 years), and Florida (40 years). The lesson: **there is no single "expiration date"** on a famous identity — you have to check the controlling state.

## Why does the state of domicile at death decide everything?

Here is the doctrine that surprises even sophisticated estates: courts apply the post-mortem publicity law of the state where the person was **domiciled at the time of death** — not where the infringement occurred, not where the estate is probated, and not where the celebrity happened to become famous.

This is a **choice-of-law** rule, and it can extinguish a right worth millions. The classic cautionary tale is **Marilyn Monroe**. Her estate spent years asserting California post-mortem rights against photographers and merchandisers. But for **estate-tax purposes**, her executors had long maintained that Monroe was domiciled in **New York** when she died in 1962 — a position that saved the estate money because New York had no state estate tax on out-of-state property. The problem: in 2012, the Ninth Circuit (in *Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC*) held the estate **judicially estopped** from now claiming California domicile. Because Monroe died a New York domiciliary, and New York recognized **no post-mortem right** at the time, her estate had **no descendible publicity right at all**. The image became, in effect, free to use.

The takeaways for anyone advising a high-value persona:

- **Domicile is a factual and strategic decision** with consequences far beyond taxes.
- **You cannot claim one domicile for estate tax and a different one for publicity rights** — courts will hold you to a consistent position.
- California's legislature responded by **amending § 3344.1 in 2007** to apply the right retroactively to people who died before 1985, but the Monroe estate still lost because the controlling law was New York's, not California's.

## What if the state recognizes no post-mortem right?

When the controlling state offers no descendible publicity right — or the term has expired — the persona is not necessarily free for anyone to exploit. Well-advised estates fall back on other bodies of law:

- **Trademark.** A name, signature, or catchphrase used to identify and sell goods can be registered and enforced as a trademark essentially forever, so long as it stays in use. This is exactly the path the Monroe estate took after losing on publicity grounds: it built a licensing program around federally registered "MARILYN MONROE" marks rather than a state publicity right. Trademark reaches consumer confusion — a fan buying an "official" product — even where a bare likeness right does not.
- **Copyright.** The estate rarely owns the copyright in every photograph of the person, but it often controls signature recordings, films, artwork, and archival images. Those copyrights can be licensed and enforced independently of publicity law.
- **Contract and false endorsement.** Federal Lanham Act § 43(a) false-endorsement claims can reach uses that falsely imply a deceased celebrity sponsored a product, and existing license agreements can bind counterparties by contract regardless of the underlying state right.

The practical takeaway is that "no post-mortem publicity right" does not mean "no protection at all" — it means the estate has to protect the persona through the overlapping tools of trademark and copyright instead. Living clients face the mirror-image question; if you are planning while a personality is still alive, see [NIL rights in California](/guides/nil-rights-california/) for how the right operates before death.

## How do estates and heirs license and enforce the right?

In states that recognize a descendible right, publicity passes as property and is managed like any other valuable asset. In practice, that means:

**Consolidate the right.** Ownership often ends up fragmented among heirs. Estates typically assign the rights to a single entity — an **LLC or licensing agency** (think Authentic Brands Group, CMG Worldwide, or the estate's own company) — so licensing decisions are centralized and enforceable.

**Register where the state provides for it.** California maintains a **registry with the Secretary of State** where successors-in-interest can record their claim to a deceased personality's rights under § 3344.1(f), and the statute generally requires a successor to have registered the claim before bringing an action for post-death uses. Indiana likewise provides for recording ownership. Filing puts the world on notice and materially strengthens enforcement, so it should be done early.

**License strategically.** The rights holder grants licenses for merchandise, advertising, holograms and "de-aging" in film, video-game likenesses, and posthumous endorsements. Well-run estates negotiate scope, term, territory, and quality-control terms carefully — a sloppy license can dilute the brand.

**Enforce against infringers.** Estates can sue for unauthorized commercial use. Remedies typically include **actual damages, the infringer's profits, and (in states like California) statutory damages plus attorney's fees**. But enforcement runs into real limits: the **First Amendment** protects news, biography, commentary, satire, and other expressive uses, so an estate generally cannot stop a documentary, a book, or an unauthorized biopic — only *commercial* exploitation like ads and merchandise.

A fast-growing enforcement frontier is **AI-generated voices and digital replicas** of the dead. Studios now "resurrect" deceased actors and musicians through synthetic performances, and estates are asserting post-mortem publicity rights to demand licensing and consent for those uses. Tennessee's ELVIS Act, New York's digital-replica provision, and a wave of 2024–2025 state bills were drafted specifically to reach this problem. If that is your concern, read our guides on [AI voice cloning and deepfakes](/guides/ai-voice-cloning-deepfakes/) and the [federal NO FAKES Act and digital-replica laws](/guides/no-fakes-act-digital-replica-laws/), which increasingly reach posthumous personas.

## What are the estate-planning implications?

Because publicity rights are property in many states, **failing to plan for them is a costly mistake**. Anyone whose name or image carries commercial value — celebrities, athletes, influencers, even successful founders — should treat publicity as part of the estate:

- **Address it explicitly in the will or trust.** Do not assume it flows automatically or that heirs will agree on how to use it. Name who inherits the right and, ideally, who has authority to license and enforce it.
- **Consider domicile deliberately.** As Monroe shows, the state you die in can create or destroy the right. This should be coordinated — not contradicted — with estate-tax planning.
- **Value the asset.** Post-mortem publicity rights can carry a significant estate-tax valuation (the IRS famously disputed the value of Michael Jackson's image and likeness), so get a defensible appraisal.
- **Fund and structure a licensing entity** during life so the transition after death is clean.
- **Coordinate with copyrights and trademarks.** A performer's persona often overlaps with copyrighted recordings and registered marks; these should be managed together.

To see how courts actually resolve these disputes, browse our [right of publicity case analysis archive](/topics/publicity/).

## The bottom line

The post-mortem right of publicity is one of the most jurisdiction-dependent areas in all of intellectual property. Whether a deceased person's name and image are protected — and for 10 years, 40, 70, or 100 — depends first on the state where they were domiciled at death, then on that state's specific statute. California (70 years), Indiana (100 years), Tennessee (indefinite with use), and New York (40 years) offer robust regimes; many states offer nothing. For heirs, the playbook is to consolidate ownership in a single entity, register the claim where required, license carefully within First Amendment limits, and enforce quickly. For estate planners, the mandate is even simpler: put publicity rights in the plan, pick domicile deliberately, and never let a tax position quietly extinguish a multimillion-dollar asset.

*This guide is general education, not legal advice, and does not create an attorney-client relationship. Post-mortem publicity rights turn on the deceased person's state of domicile and that state's specific statute — consult an attorney licensed in your jurisdiction before licensing, enforcing, or planning around them.*


## Frequently asked questions

### Does the right of publicity survive after death?

It depends entirely on the state. Roughly half of U.S. states recognize a post-mortem right of publicity — either by statute or common law — that lets an estate control commercial use of a deceased person's name, image, and likeness. The other half either limit the right to living people or have never recognized a descendible right at all. Because there is no federal right of publicity, the answer turns on the law of the state where the person was legally domiciled at death.

### How long does the right of publicity last after death?

The duration varies dramatically by state. California protects the right for 70 years after death under Civil Code section 3344.1, Indiana for 100 years, and New York for 40 years for deceased performers and personalities under its 2020 law. Tennessee's right lasts at least 10 years and can continue indefinitely as long as the identity is commercially exploited. States with no post-mortem statute provide zero protection once the person dies.

### Which state's law controls a dead celebrity's publicity rights?

Courts apply the law of the state where the celebrity was domiciled at the time of death — not where the alleged infringement happened or where the estate is administered. That single fact can decide whether any post-mortem right exists at all. In the Marilyn Monroe litigation, courts held she was domiciled in New York at death, which then recognized no post-mortem right, so her estate could not stop unlicensed use of her image.

### How do heirs license a deceased celebrity's name and image?

In states that recognize a descendible right, it passes by will or intestate succession like other property and can be assigned to an estate, LLC, or licensing agency. The rights holder then grants licenses for advertising, merchandise, films, and endorsements, and can sue infringers. Estates should register the claim where required (California and Indiana maintain registries) and address publicity rights explicitly in estate-planning documents.