The right of publicity, a person’s control over the commercial use of their identity, is the only major American intellectual property right that Congress has never federalized. Copyright, patents, and trademarks all run on national statutes. Publicity does not. It is created state by state, which means the answer to “am I protected” and “did I infringe” changes at every state line, and often changes in ways that decide the case.
The practical consequence is that there is no such thing as “the” right of publicity in the United States. There are roughly fifty of them, built on two different legal foundations, with terms ranging from nothing to a century, covering different attributes, and reachable only through a choice of law analysis most people never think to run.
The right grew out of privacy, not property. New York enacted Civil Rights Law §§ 50 and 51 in 1903 after its highest court refused to recognize a common law privacy claim for a girl whose portrait was used on flour advertisements. That statute was a legislative correction to a state tort ruling, and every state that followed was free to make its own choice, or none.
The property framing came later. In Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2d Cir. 1953), Judge Frank coined the phrase “right of publicity” and held that a ballplayer had an assignable interest in his own likeness, separate from hurt feelings. The Restatement (Third) of Unfair Competition §§ 46 through 49 (1995) later synthesized the doctrine, but a Restatement is persuasive, not binding. Nothing in this history ever produced a national rule, and the Supreme Court has touched the subject exactly once, in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), which resolved a First Amendment question rather than defining the right itself.
The first axis of variation is the source of the right, and it is not a formality.
Beyond the source, five variables do most of the work in real disputes.
Descendibility and post-mortem term. This is the widest gap in American IP law. Indiana provides 100 years after death, as does Oklahoma. Washington gives 75 years to a “personality,” meaning someone whose identity had commercial value, and 10 years to everyone else. California gives 70 years, Nevada 50, and New York 40 under § 50-f, which took effect on May 29, 2021 and reaches only people who died on or after that date. Other states provide nothing, so the right simply dies with the person.
Lifetime exploitation. Some regimes protect only those who commercialized their identity while alive, or grade the term by commercial value as Washington does. Others, including California, extend the post-mortem right without requiring that the person ever licensed anything: § 3344.1(h) protects a deceased personality whose identity had commercial value at death whether or not they exploited it in life.
What counts as identity. New York’s statute lists name, portrait, picture, and voice. Indiana’s covers name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, and mannerisms. That is not a stylistic difference. A claim over a performer’s characteristic gesture is viable in Indianapolis and unpleadable in Manhattan.
Statutory damages. California sets a floor of $750 per violation under § 3344, and Indiana sets $1,000. In common law states, the plaintiff proves actual damages or the defendant’s profits, which for a low-value plaintiff can mean a right that is real but not worth enforcing.
Registration. Nevada and Oklahoma condition post-mortem recovery on filing a claim of rights with the Secretary of State. An estate that never files can hold a right it cannot monetize in litigation.
Because the rights differ, the threshold question is never “what does the law say,” it is “whose law applies.”
For living plaintiffs, courts generally apply the law of the place of the injury. Advertising injures where the advertisement reaches, so a single national campaign can trigger the statutes of many states simultaneously, each with its own elements, exemptions, and damages. A defendant can lose in one state and win in another on identical facts.
For the deceased, the rule is different and far more consequential: courts look to the law of the decedent’s domicile at death. Marilyn Monroe’s estate learned this the hard way. Having asserted New York domicile for decades to reduce estate tax exposure, the estate was judicially estopped from claiming California domicile when California retroactively created a post-mortem right, and New York had none at the time. The result in Milton H. Greene Archives v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), was that one of the most valuable identities of the twentieth century had no descendible right at all. The Ninth Circuit reached the same structural conclusion for Princess Diana in Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002), where a British domicile meant no California claim.
Some states push against this. Indiana’s statute purports to reach any act within Indiana regardless of where the person lived or died, an aggressive posture that has drawn criticism precisely because it invites forum shopping into the longest term in the country.
Two preemption pressures exist, and neither has collapsed the patchwork.
Copyright preemption under 17 U.S.C. § 301 knocks out state claims equivalent to copyright in works fixed in a tangible medium. It routinely fails against publicity claims, because identity is not a work of authorship. In Toney v. L’Oreal USA, 406 F.3d 905 (7th Cir. 2005), a model’s Illinois publicity claim survived even though the photograph itself was copyrighted: her identity was never fixed in any tangible medium, so it fell outside copyright’s subject matter entirely. The photo is the copyright. The person is not.
Legislative preemption is what proposals like the NO FAKES Act, reintroduced in Congress in April 2025, are reaching for. Generative AI made the patchwork acute, since a synthetic voice clone is distributed everywhere at once and the applicable law depends on where it lands. But the pending bills create a narrow digital replica right rather than a general federal right of publicity, and they carve out state laws enacted before January 2, 2025. Even if one passes, the state-by-state map survives underneath it.
Is there a federal right of publicity? No. Unlike copyright, patent, and trademark, the right of publicity has never been federalized. It exists only as state law, created by statute in roughly half the states, by common law in many others, by both in some, and not at all in a few. Federal proposals such as the NO FAKES Act would create a narrow federal digital replica right, but none has been enacted, so the patchwork remains the governing reality.
How many states have a right of publicity? There is no single official count, because states recognize the right through different mechanisms. Roughly half have a right of publicity or appropriation statute, and a comparable number recognize a common law right through court decisions, with substantial overlap between the two groups. California has both. New York has only a statute. A small number of states have never squarely recognized the right at all.
Which state’s right of publicity law applies to my case? For a living plaintiff, courts generally apply the law of the place of the injury, which for advertising usually means each state where the ad ran. A national campaign can therefore trigger many states’ laws at once, with different elements and damages in each. For a deceased person, courts look instead to the law of the state where that person was domiciled at death, which is why Marilyn Monroe’s estate lost its post-mortem claims.
How long does the right of publicity last after death? It depends entirely on the state, and the spread runs from zero to a century. Indiana and Oklahoma provide 100 years. Washington gives 75 years to a person whose identity had commercial value and 10 years to everyone else. California gives 70 years, Nevada 50, and New York 40. Some states provide no post-mortem right at all, and a few condition recovery on registering a claim with the Secretary of State.
Going further: Right of Publicity by State, the current map .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The Fifth Circuit held Texas misappropriation law protects name and likeness but not a person's life story, defeating an ex-officer's claim over the novel Rush.
New York's high court held a model's photo in a consumer fashion column was newsworthy, not trade use, and that sections 50 and 51 are the exclusive remedy.
New York's highest court refused to recognize a common-law right of privacy after a young woman's photo was used on flour ads, prompting the legislature to enact one within a year.
In 1905 Georgia's high court became the first in the nation to recognize a common-law right of privacy, after an insurer used an artist's photo in a fabricated advertisement.
The Seventh Circuit's Toney decision holds that the Copyright Act does not preempt an Illinois Right of Publicity Act claim, anchoring the rule that a persona is neither fixed nor authored.
The Ninth Circuit held that former NCAA players' publicity claims over an online photo-licensing service were preempted by copyright, because the suit attacked control of the photographs themselves rather than use of the players' identities on merchandise or in ads.
A California appellate court held that models' statutory right-of-publicity claims under Civil Code § 3344 are not preempted by federal copyright, because a human likeness is not copyrightable even when captured in a copyrighted image.
The Ninth Circuit reversed a $3 million judgment for Dustin Hoffman, holding that a digitally altered photograph in an editorial fashion feature was protected speech, not a commercial appropriation of his likeness.
