Rights That Outlive You: Post-Mortem Publicity, Descendibility, and the Estate's Toolkit
By Casey Scott McKay ·
The right of publicity is the only major intellectual property interest whose survival after death depends on where the person happened to live. This article explains the descendibility question, why domicile at death governs it, and what happens when a personality dies domiciled in a state that recognizes no post-mortem right. It covers statutory terms, the registration requirements some states impose as a condition of enforcement, and the lifetime exploitation conditions that defeat claims for people who were never commercially exploited. It then turns to the estate's practical work: establishing chain of title, drafting a will that actually transfers the right, building a licensing program, using trademark and copyright to supplement a right that expires, and clearing digital replica uses. It closes with valuation and the tax problem that has surprised more than one estate.
IP and Technology > Right of Publicity | Article | Published 25 December 2023 - Updated 9 September 2025 | Casey Scott McKay - marksy.us
Summary. The right of publicity is the only major intellectual property interest whose survival after death depends on where the person happened to live. This article explains the descendibility question, why domicile at death governs it, and what happens when a personality dies domiciled in a state that recognizes no post-mortem right. It covers statutory terms, the registration requirements some states impose as a condition of enforcement, and the lifetime exploitation conditions that defeat claims for people who were never commercially exploited. It then turns to the estate's practical work: establishing chain of title, drafting a will that actually transfers the right, building a licensing program, using trademark and copyright to supplement a right that expires, and clearing digital replica uses. It closes with valuation and the tax problem that has surprised more than one estate.
Keywords: post-mortem publicity, descendibility, domicile at death, statutory term, registration requirement, chain of title, testamentary transfer, residuary clause, lifetime exploitation requirement, estate administration, licensing program, trademark as a supplement, copyright interaction, digital replica consent, heirs and successors, valuation, estate tax, enforcement standing, expressive work carve-outs, choice of law
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