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Postmortem Rights of Publicity

The laws defining the right of publicity – the right to prevent others from using your name and likeness without permission – are a state-by-state patchwork. For example, while New York has a strong right of publicity statute (Sections 50 and 51 of its state Civil Rights Law), New Jersey recognizes only a common-law right, recognizing a person’s right in their name and likeness as a property right. The laws are even more patchwork for a postmortem right of publicity, the right of estates or heirs to control the use of a deceased person’s name and likeness. Such postmortem rights are recognized in only about half the states, and they vary wildly where they are recognized.

New York’s law granting a post-mortem publicity right, Section 50-f of the Civil Rights Law, went into force only recently – in May 2021. Unlike the general New York right of publicity, which is available to anyone, the postmortem right is limited to performers and personalities, people who commercialized their name, likeness, or other aspects of their persona before their death. Another unique aspect of the New York postmortem right is that it requires the deceased performer or personality’s successors to register their right in the decedent’s right of publicity. That is, if you’re the heir of a famous performer who died in New York, you must register with the State of New York before bringing any claim under Section 50-f.

However, it appears that no one has yet registered any right of publicity claim under 50-f. Even though the new postmortem right of publicity applies only to persons who died on or after May 29, 2021, it seems surprising no one has yet registered their rights.

While no one wants to think about their death or that of a loved one, if you or a relative has a commercial interest in their name, likeness, or persona, there should be a plan for controlling those rights after death. Please feel free to contact the intellectual property attorneys at Norris McLaughlin about disputes over intellectual property.