Most likely no.
The right of publicity is an intellectual property right that protects a person’s name, likeness, nickname, pseudonym, voice, signature, likeness, or photograph that identify a particular individual. This right protects against the misappropriation for commercial purposes.
Since there is no federal law that recognizes the right of publicity, publicity rights are protected under state law, if your state has adopted such a legal framework.
Only a handful of states have enacted statutes to protect the right of publicity, and the protection varies from state to state. States such as Indiana, California, Illinois, and Florida have the strongest protection of postmortem rights with 100, 70, 50, 40 years respectively.
Other states such as New York do not recognize commercial post-mortem right of publicity at all.
Thus, it becomes extremely important to determine the state in which the deceased celebrity was a resident at the time of his/her dead. Always taking into consideration that residency requirements vary by state.
Therefore, if a particular dead celebrity died in a state that recognizes such rights, the only way to exploit commercially their image is through a proper license with the estate of the celebrity.
Since publicity rights eventually expire, a way to further expand those rights is trough trademark protection. You can register a person’s names and/or likenesses as trademarks. Can only be registrable though, if it functions as an identifier of the source of the applicant’s goods or services. Meaning it must be used to sell products or provide a service. The advantage of trademarks is, that as long as the mark is used in commerce, the trademark can be renewed indefinitely.
I have helped countless business navigate the intricacies of publicity rights to secure licensing rights and to also protect person’s names and/or likenesses as trademarks. I’d like to help you too, also by protecting your rights to trademarks, copyrights, and other intellectual property rights in the US and overseas.
