The post-mortem right of publicity is the right to control commercial use of a dead person’s name, voice, signature, photograph, and likeness, held by heirs or assignees instead of by the person. The whole doctrine turns on one question lawyers call descendibility: is the right of publicity property, which survives death and passes like a house or a share of stock, or is it a personal right, which dies when the person does?
There is no federal right of publicity, so there is no national answer. Every state resolves descendibility on its own, and they resolve it very differently. Indiana protects an identity for a century after death. Many states protect it for nothing at all. Which rule an estate gets is decided not by where the infringing billboard went up but by where the decedent happened to be domiciled on the day they died.
While a person is alive, nearly every state gives some protection against commercial appropriation of identity, whether by statute, by common law, or by both. Death is where the consensus collapses.
The reason is that the right of publicity has two competing origin stories. If it grew out of privacy, as the early cases framed it, then it protects a dignitary interest personal to the individual, and personal interests do not survive their holder. If it grew out of unfair competition and property, as the modern cases mostly frame it, then it is an economic asset like any other, and assets are inherited. Courts that took the privacy path found no post-mortem right. Courts and legislatures that took the property path found one, and then had to invent a term of years, because unlike a house, an identity has no natural owner once the family stops caring.
That is why the durations look arbitrary. They are arbitrary. They are legislative compromises between estates that want perpetuity and everyone else who wants the public domain.
Roughly half the states recognize a post-mortem right. The important ones:
Some statutes add a condition that catches estates by surprise: a requirement that the identity was commercially exploited during the person’s lifetime. Where that condition exists, a person who was famous but never licensed anything may leave heirs with no right to inherit.
Because the right is a creature of state law, a court hearing a post-mortem publicity claim must first choose a state’s law, and the near-universal rule is that the law of the decedent’s domicile at death governs. Not the forum. Not the place of the infringement. Not where the estate is administered.
This is where estate planning that was clever for one purpose becomes fatal for another. Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), is the canonical illustration. Monroe died in her Los Angeles home in 1962. Her estate nevertheless told probate courts and taxing authorities, consistently and for decades, that she was domiciled in New York, a position worth a great deal in avoided California estate taxes. When California later amended § 3344.1 to hand the estate a retroactive 70-year right, the estate tried to reverse course and claim California domicile. The Ninth Circuit applied judicial estoppel and refused to let it: having taken the New York position and profited from it, the estate was stuck with it. New York had no post-mortem right in 1962. Monroe’s image fell into the public domain.
The lesson generalizes past celebrities. Domicile is a fact fixed at a single moment that no later agreement, license, or legislative rescue can rewrite.
If the right is descendible, it is property, and property is taxed. A descendible right of publicity is includable in the gross estate 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, shows how wide the honest range can be. The estate’s return reported Jackson’s image and likeness at $2,105. The IRS, after audit, asserted a value above $434 million, then reduced its litigating position to $161,307,045. The Tax Court found $4,153,912.
The gap is not incompetence on anyone’s part. It is the date-of-death rule doing its work. In June 2009 Jackson’s reputation was in ruins after the 2005 criminal trial, his name had licensed almost nothing for years, and no hypothetical willing buyer would have paid for what the estate’s managers later built through This Is It and the Cirque du Soleil shows. Value created after death by the estate’s own effort is not value the decedent owned. The case is now the reference point for every appraisal of a famous identity.
A post-mortem right is not a veto over all mention of the dead. The same First Amendment and statutory limits that constrain the living person’s right apply to the estate’s, and often with more force, since historical figures are the natural subject of expression.
News reporting, biography, documentary, fiction, satire, and scholarship are outside the right in every recognizing state, and California’s statute says so expressly in § 3344.1(a)(1)(B), exempting plays, books, magazines, newspapers, musical compositions, audiovisual works, radio and television programs, single and original works of art, and works of political or newsworthy value. What the right reaches is the merchandising core: the t-shirt, the endorsement, the slot machine, the hologram tour. The rough line is whether the use is the expression or whether the identity is being used to sell something else.
Copyright also polices the boundary. A photograph of a dead celebrity is owned by the photographer, not the estate, and the estate cannot use a publicity claim to seize control of someone else’s copyrighted image. That tension is exactly what the Monroe litigation was about.
What is the post-mortem right of publicity? It is the right to control commercial use of a person’s name, voice, signature, photograph, and likeness after that person has died, held by heirs, beneficiaries, or an assignee rather than by the person. Lawyers call the underlying question descendibility, meaning whether the right is property that survives death and passes to someone else, or a personal right that dies with the individual. There is no federal answer. Each state decides for itself, and the states disagree.
How long does the right of publicity last after death? It depends entirely on the state whose law applies. California protects it for 70 years after death under Civil Code section 3344.1. Indiana protects it for 100 years, the longest in the country. Washington gives 75 years to a person whose identity had commercial value and 10 years to everyone else. Tennessee gives at least 10 years and extends indefinitely as long as the identity stays in commercial use. New York gives 40 years, but only for people who died on or after May 29, 2021. In states with no post-mortem right at all, the answer is zero.
Which state’s law applies to a deceased celebrity’s publicity rights? Courts apply the law of the state where the person was legally domiciled at death, not the state where the unauthorized use occurred and not the state where the estate is probated. That single historical fact decides whether the estate owns anything. In Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), the Monroe estate had represented for decades that she died a New York domiciliary in order to avoid California estate taxes. The Ninth Circuit applied judicial estoppel and held the estate to that position, and because New York recognized no post-mortem right, the estate had nothing to enforce.
Is a deceased person’s likeness subject to estate tax? Yes, where the right is descendible. A descendible right of publicity is property includable in the gross estate under 26 U.S.C. section 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 case. The estate reported the image and likeness at $2,105, the IRS asserted $161,307,045 by the time of trial, and the Tax Court found the date-of-death value was $4,153,912, reasoning that the valuation must ignore the posthumous marketing success no one could have foreseen in 2009.
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 Tennessee Court of Appeals held the right of publicity is descendible common-law property, making Tennessee the epicenter of post-mortem rights.
The court held Marilyn Monroe could not devise a post-mortem publicity right through her will because no such right existed at her 1962 death.
A federal court held that New Jersey's common-law post-mortem right of publicity lasts no more than 50 years, so Albert Einstein's rights had expired before GM ran its 2009 ad.
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.
The California Supreme Court's 1979 companion to Lugosi denied a descendible right of publicity, but Chief Justice Bird's concurrence on fictionalized portrayals of the dead became enduringly influential.
Why the Sixth Circuit held in 1980 that Elvis Presley's right of publicity died with him and passed into the public domain, an Erie prediction Tennessee would later reject.
How the California Supreme Court held in 1979 that the right of publicity is personal, dies with its owner, and is not descendible to heirs, prompting the statute that overturned it.
