The Right of Publicity: A Strange (But Important) Law to Understand

October 29, 2014

By Michael Berberich

The right of publicity is the right of an individual (celebrity or not) to control the commercial use of his or her name, image, and likeness. Advertisers are well aware that they cannot use a living person’s likeness without permission, but they are generally unclear about the laws surrounding individuals who are deceased. There’s a good reason for the uncertainty: rights of publicity are (oddly) determined by which state the individual in question was in when they passed away.   

If an individual passes away in Indiana, for instance, their name and likeness are protected from commercial use for 100 years post-mortem. In California, a special law was introduced that passed the right of publicity to an individual’s family for 70 years, an important addition to the celebrity-filled state’s statute. Delaware, on the other hand, has no such right of publicity, and the names and likenesses of the deceased are “fair game.”

While the subject is somewhat morbid, it highlights the fact that marketers can’t take anything for granted when using someone’s likeness in marketing. For more legal issues you might not know even exist, check out Reed Smith’s Don’t be the Next #SocialMediaFail and the latest Marketing Law Insight Brief.


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