Licensing name, image and likeness through an estate is a property transaction, not a personality question. In states that make the right of publicity descendible, an identity is an asset that survives its owner: it can be assigned, held in an entity, pledged, valued by an appraiser, taxed, and licensed under a written agreement with a scope, a term, and a royalty. Estates like Elvis Presley’s and Michael Jackson’s earn what they earn because someone treated the identity as inventory and papered it accordingly.
The catch is that the asset is a creature of state law. There is no federal right of publicity, so what an estate actually owns depends on a single historical fact, the decedent’s domicile at death, that no license agreement can retroactively fix.
A right of publicity has two lives. During the person’s lifetime it looks like a tort defense: sue the advertiser who used your face. After death, in states that recognize it, it becomes ordinary transferable property. California says so directly in Civil Code § 3344.1, which describes the right as freely transferable, in whole or in part, by contract, trust, or will, and which passes by intestate succession if the person left no instrument disposing of it. Indiana, Tennessee, and the newer New York statute follow the same structure.
That framing has consequences the family usually discovers late. If the right passes by residuary clause, it may end up fractionated among heirs who cannot agree on a single deal. If it passes to people who do not want it commercialized, it still exists and still has to be valued for tax. And in the states without a post-mortem right, there is no asset at all, only a bundle of trademark and false-endorsement theories under Lanham Act § 43(a) that reach far less conduct.
An NIL license is a permission grant, and the drafting work is mostly about bounding it. Six terms carry the deal.
Approval rights are the estate’s substantive control, not paperwork. An identity is a reputation, and reputation is what the licensee is renting. Where the license also involves a trademark, which it usually does once merchandise appears, quality control is not optional: uncontrolled licensing of a mark is naked licensing and can abandon the trademark outright.
The morals clause is the mirror image, and post-mortem it points at the licensee, not the licensor. A dead person cannot generate a new scandal, but a licensee can put the name on a product that embarrasses it. Estates increasingly draft a two-way clause: the estate can terminate if the licensee’s conduct or product damages the identity, and the licensee gets a narrower right tied to newly surfaced facts about the decedent. The Michael Jackson litigation is the concrete lesson in why the second half exists, because the Tax Court’s valuation turned substantially on allegations that suppressed commercial demand for years.
Every clause above assumes the right exists. Whether it does turns on where the decedent was domiciled when they died, because courts apply that state’s law regardless of where the infringing billboard went up or where probate opened.
Marilyn Monroe is the standing example. California enacted a retroactive post-mortem right in 2007 to reach identities of people who died before the statute existed. It did not save her estate. In Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), the court applied judicial estoppel: the estate had asserted New York domicile for decades to reduce California estate tax, and it could not now claim California domicile to capture California’s publicity statute. New York at the time recognized no post-mortem right, so the answer was zero. New York’s § 50-f, enacted in 2020 and effective May 29, 2021, gives 40 years of post-mortem protection but is not retroactive, so it reaches only people who died on or after that date.
Because the right is transferable during life, the planning move is to move it before death rather than let a probate court sort it out. The common structure is an assignment of publicity rights to an LLC or an irrevocable trust, with the entity as the named licensor in every deal and a written assignment that the estate can produce years later.
Doing so buys three things: continuity, because licenses run to an entity that does not die; unity of control, because an operating agreement can name one manager rather than five bickering heirs; and evidentiary cleanliness, because the chain of title is documented at the time it was created. It does not buy a change of law. Domicile still controls, and an entity in a favorable state does not manufacture rights the decedent’s home state never granted. Where the statute provides for it, registration also matters: California, Nevada, and New York run claim registries for successors in interest, and California bars damages for any use that occurred before the claim was registered. Indiana, by contrast, runs no registry at all, so its 100 years attach without any filing.
If the right is descendible, it is includable in the gross estate under 26 U.S.C. § 2033 and valued at fair market value as of the date of death under 26 U.S.C. § 2031. That is a hypothetical willing-buyer, willing-seller question asked on one specific day, using only what was knowable then.
Estate of Michael Jackson v. Commissioner, T.C. Memo. 2021-48 (May 3, 2021), shows how wide the spread can be. The estate reported the image and likeness at $2,105. The IRS’s audit position exceeded $434 million and its trial position was $161,307,045. The Tax Court found $4,153,912, rejecting the government’s expert projections as unreasonable because they built in post-death earnings that no June 2009 buyer could have foreseen. The reasoning is the takeaway for planners: hindsight does not count, and the value of an identity on the date of death can be a small fraction of what the estate later earns from it.
Can name, image and likeness rights be inherited? In many states, yes. Roughly half of U.S. states treat the right of publicity as a descendible property interest that passes by will or intestate succession, the same way a copyright or a share of stock does. California protects it for 70 years after death, Indiana for 100, New York for 40 for people who died on or after May 29, 2021, and Tennessee for at least 10 with indefinite extension while the identity stays in commercial use. In states with no post-mortem statute or case law, the right simply dies with the person and the estate has nothing to license.
What terms go into a name, image and likeness license? Six do most of the work: scope (which media, products, and uses), territory (which countries or states), term (how long, plus sell-off and renewal), exclusivity (whether the licensee is the only one in that field), approval rights (who signs off on artwork, copy, and placement), and compensation (guarantee plus royalty). Serious deals add a morals clause, an audit right, quality control, and a clear statement that the license is a grant of permission, not a transfer of ownership.
Why does domicile at death matter for publicity rights? There is no federal right of publicity, so courts apply the law of the state where the person was legally domiciled at death, not where the infringement happened or where the estate is probated. In Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), the estate had told probate and tax authorities for decades that Monroe died a New York domiciliary. The Ninth Circuit held it to that position, and because New York recognized no post-mortem right, the estate could not enforce one.
Is a celebrity’s name and likeness taxed in the estate? Yes, if the right is descendible in the applicable state. It is includable in the gross estate as property under 26 U.S.C. § 2033 and valued at fair market value on the date of death. Estate of Michael Jackson v. Commissioner, T.C. Memo. 2021-48, is the leading illustration. The estate reported the image and likeness at $2,105, the IRS asserted $161,307,045 at trial after an audit position above $434 million, and the Tax Court found $4,153,912.
Going further: Post-Mortem Right of Publicity, state by state .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The Ninth Circuit held Fred Astaire clips in a dance-lesson video fell within California section 990's film exemption, a ruling that triggered the Astaire Act.
The Second Circuit held the law of a celebrity's domicile at death governs descendibility, and under then-current California law the Marx estates had no claim.
The Ninth Circuit held that British law, not California's, governed Princess Diana's post-mortem publicity claim, and because Britain recognizes no such right, the estate's claim failed.
The Ninth Circuit held that Marilyn Monroe's estate, having sworn for forty years that she died a New Yorker to dodge California estate tax, was judicially estopped from claiming California domicile to capture a posthumous right of publicity worth millions.
Georgia's Supreme Court held that Dr. King's right of publicity survived his death and was inheritable even though he never licensed his identity for profit, uncoupling descendibility from lifetime commercial exploitation and reshaping what a non-commercial figure's estate can protect.
A New Jersey court held that Elvis Presley's right of publicity descended to his estate and barred impersonator merchandise and confusing marketing, but declined to shut down the live 'Big El Show' itself because the estate never proved an identifiable economic loss from the performance.
The Second Circuit first upheld, then withdrew, an exclusive licensee's power to enforce Elvis Presley's posthumous identity: a whiplash that exposed how fragile a celebrity-estate license is when the underlying right depends on an unsettled state law.
