The right of publicity gives celebrities (and sometimes their heirs) a limited ability to control the use of their name and likeness. Initially developed as an outgrowth of privacy rights, the right is now more widely understood as akin to an intellectual property right, preserving the commercial value of the celebrity’s fame and preventing the misappropriation of goodwill. Unlike other intellectual property rightspatent, copyright and trademarkthere is no federal statute that sets nationwide standards for publicity rights, which are left to the laws of individual states. For that reason, important questions, including whether publicity rights survive a celebrity’s death, can differ greatly from state to state. Two recent cases concerning two of the country’s most famous celebrities illustrate how critical choice of law can be to the posthumous right of publicity.
Milton H. Greene Archives v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012), addressed whether Marilyn Monroe’s right of publicity survived her death. The existence of a posthumous right of publicity is typically, but not always, governed by the state where the celebrity was domiciled at the time of death. Monroe was a long time New York resident but bought a home in California where she was living when she died.
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