Descendants may have postmortem right of publicity

On Behalf of | Mar 24, 2023 | Right Of Publicity |

California has extensive right of publicity laws protecting its citizens. These rights cover the unauthorized use of voice, signature, photograph, name, or likeness and carry over after the individual’s death. Violations of these protections for commercial gain or defamation of character can lead to legal disputes, litigation and financial damages.

Considering the number of celebrities who call California home and that many of them pass their estate assets over to family or others, beneficiaries need to be aware of how postmortem right of publicity works.

There are differences

The good news is that postmortem rights protecting unauthorized use are just as powerful as those of the living. Still, some differences allow (with some exceptions) the following:

  • Use in public affairs, news, political campaigns and sports broadcasts
  • Incidental uses of employees
  • Forms of creative expression (book, play, music, etc.)

Distributors and publishers are not liable unless they were aware of the unauthorized use. Also, the decedent whose rights are used must have had commercial value because of their death or at the time of their death, but they need not have previously exploited that value.

Transferring the rights

The right of publicity is a property right. The noteworthy decedent may have exercised their right of publicity as part of one or many business arrangements. Perhaps the notable individual did not authorize use or never considered the opportunity to do so during their lifetime. Even if the estate plan did not identify the rights, they last for 70 years after death. Still, to recover damages, the beneficiary must register their claim of rights with California’s Secretary of State.

Unless the estate plan identifies a beneficiary, the right of publicity automatically passes to the immediate family, where the spouse gets half, and the children get the other half. If there is no spouse, the children divide the total amount. The grandchildren are next in line. If there are no direct descendants, the rights go to the parents. If none of these people exist, the right of publicity terminates.

Descendants can protect a legacy

It can be frustrating to see the unauthorized commercial exploitation of a noted father, mother, or other relative. Those with questions or concerns about protecting or nurturing a legacy should discuss it with intellectual property attorneys who handle this work regularly here in California.