Estate and Legacy Rights Toolkit: Post-Mortem Publicity, Catalogs, and Succession

By Casey Scott McKay · 2024-06-02

The right of publicity is the only major intellectual property interest whose survival after death depends on where the person happened to live, and most of what an estate loses is lost in the first year through registration failures and fragmentation. This toolkit runs a deceased personality's rights from the domicile question through a mature licensing program and eventual sale, and routes each stage to the Marksy documents that do the work. It separates the five assets an estate actually holds - the publicity right, trademarks, copyrights, physical archive, and contract rights - because confusing them is the most common analytical error in the area. It covers registration as a precondition to enforcement, consolidation before interests disperse, the trademark layer that outlives an expiring publicity term, copyright termination windows worth more than the publicity right, digital replica consent, valuation and estate tax, and enforcement sequencing.

IP and Technology > Right of Publicity | Toolkit | Published 2 June 2024 - Updated 14 August 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, and most of what an estate loses is lost in the first year through registration failures and fragmentation. This toolkit runs a deceased personality's rights from the domicile question through a mature licensing program and eventual sale, and routes each stage to the Marksy documents that do the work. It separates the five assets an estate actually holds — the publicity right, trademarks, copyrights, physical archive, and contract rights — because confusing them is the most common analytical error in the area. It covers registration as a precondition to enforcement, consolidation before interests disperse, the trademark layer that outlives an expiring publicity term, copyright termination windows worth more than the publicity right, digital replica consent, valuation and estate tax, and enforcement sequencing.

Keywords: domicile at death · descendibility · statutory term · registration precondition · testamentary devise · residuary clause · intestate shares · fractional interests · consolidation entity · trademark layer · copyright termination windows · archive and physical property · licensing policy · quality control · non-use termination · digital replica consent · estate tax valuation · enforcement standing · diligence and sale · lifetime planning

Start Here

An executor calls in the third month of an administration. The decedent was a working musician with a modest recording career, a recognizable name, and a body of photographs nobody has catalogued. Four questions arrive at once.

A licensee wants to use the name on a line of instruments and has asked what rights the estate holds. Nobody knows.

The decedent lived in three states over four decades and died in a fourth. Nobody has established which one governs.

A photograph agency has been licensing images of the decedent for years, and the family assumed the estate controlled them. It does not.

And the estate tax return is due, with an asset on it that produces no income and that an appraiser has valued at a number the family cannot fund.

Four questions, and every one of them turns on work that should have been done in month one.

This toolkit answers three questions.

Does a right exist, and who holds it? Domicile at death, descendibility, term, conditions, and a chain of title from the decedent forward.
What else does the estate hold? Four other assets, with different terms and different enforcement mechanisms, and the publicity right is frequently the shortest-lived.
How does this become a program rather than a file? Registration, consolidation, a trademark layer, a licensing policy, and an annual discipline.

If you read only one thing, read Rights That Outlive You. It explains why this area behaves unlike every other intellectual property regime and what follows from that.

The Question That Decides Everything

A patent lasts twenty years from filing wherever the inventor lived. A copyright lasts the author's life plus seventy years in every state. A trademark lasts as long as it is used.

The right of publicity is different. Whether it survives death, for how long, who inherits it, and whether it must be registered are all questions of state law, and the state that answers them is generally the state of the decedent's domicile at death.

Establishing domicile. Physical presence plus intent to remain. The evidence is the death certificate, income tax returns and their filing state, voter registration, driver licensing, property ownership and actual use, club and religious memberships, family location, place of medical treatment, and the decedent's own statements. Where someone maintained homes in several states — as the executor's decedent did — the analysis is factual and expensive.

The retirement problem. Personalities move late in life for weather, taxes, or family, and the move can extinguish or create a valuable asset without anyone considering it. This is a planning failure and it is entirely avoidable with a conversation.

Foreign domicile. Many jurisdictions treat personality rights as personal and non-descendible, and a domestic estate administering a foreign-domiciled personality should not assume the domestic framework applies.

Why courts adopted the rule. A single answer to the existence question. Without it, a personality would hold a post-mortem right in some states and not others, which would make licensing incoherent.

Descendibility, Term, and Conditions

States with a statutory post-mortem right, with terms ranging from ten years to a century. Cal. Civ. Code § 3344.1 supplies seventy years with a registration mechanism. Tenn. Code § 47-25-1104 supplies an initial ten years continuing indefinitely so long as the right is commercially exploited, ceasing after a defined period of non-use. Ind. Code § 32-36-1-8 is among the broadest in scope with a hundred-year term. N.Y. Civ. Rights Law § 50-f supplies forty years for deceased performers and personalities, with a registration requirement and express digital replica provisions.

States with no post-mortem right. Several recognize the right during life and hold it terminates at death. A personality domiciled in one of those states leaves no publicity right for the estate to administer, regardless of how valuable the persona is.

States with common law rights only, where descendibility may be unresolved until a case presents it.

Retroactivity. Several statutes were enacted or amended to apply to individuals who died before enactment, and their application to those estates has been litigated. The answers vary and they matter enormously for mid-century personalities.

Registration as a precondition. Some regimes condition enforcement on registration with a state office, and estates lose claims on this ground with some regularity because nobody told the executor. Cal. Civ. Code § 3344.1; N.Y. Civ. Rights Law § 50-f.

Commercial exploitation during life. Some statutes limit the post-mortem right to individuals whose persona had commercial value during life, which can defeat claims for a private individual who becomes newsworthy after death.

Non-use termination. The Tennessee approach terminates the right after a defined period of non-use, which makes continuous licensing a condition of continued ownership rather than merely a source of revenue.

Expressive-work carve-outs. Nearly universal, covering news, public affairs, sports broadcasts, political campaigns, and works of fiction, biography, and commentary. The boundaries are contested and they are where most post-mortem disputes are actually decided.

The Five Assets

"The rights to a personality" is not one asset. It is five, held by different parties, with different terms.

The publicity right. The persona — name, likeness, voice, and depending on the state signature, mannerisms, and other identifying attributes. State law, domicile-dependent, expiring on a statutory term. Frequently the shortest-lived of the five.

Trademarks. A name, signature, or stylized likeness used as a source identifier. Registrable under 15 U.S.C. § 1051, examined under 15 U.S.C. § 1052 including the consent requirement for marks identifying a deceased person at 15 U.S.C. § 1052(c), and enforceable under 15 U.S.C. § 1114 and 15 U.S.C. § 1125. Renewable indefinitely on continued use, which makes it the durable layer. It reaches source-identifying uses only, so it does not substitute for the publicity right against a poster or a shirt bearing a portrait.

Copyrights. In photographs, films, recordings, writings, and artwork, owned by whoever created or acquired them — for a performer, frequently a studio or a label. Where the estate does hold them, 17 U.S.C. § 302 supplies the term and the termination provisions at 17 U.S.C. § 203 and 17 U.S.C. § 304 can recapture grants made decades ago.

Physical property. Manuscripts, photographs, costumes, instruments, correspondence, and memorabilia. Ownership of the object is not ownership of the copyright in it, and possession is not a licence to reproduce — which is the executor's third question, and the answer is that the photograph agency may well hold copyrights the estate never had.

Contract rights. Royalty streams, participations, and residuals under agreements signed during life.

Why the distinction governs every conversation. A licensee asking for "the rights" wants some combination of these. An estate that grants broadly without knowing which it holds will over-grant, fail to deliver, or both — which is the executor's first question and the reason it cannot yet be answered.

Establishing the Chain

Testamentary transfer. Most statutes provide that the right passes by will, and several provide it passes under a residuary clause if not specifically devised. A will drafted before the right existed may nonetheless transfer it through the residuary, and the estate has to establish that.

Intestacy. Statutes typically supply a distribution among surviving spouse and descendants, sometimes with specified fractions. Multiple heirs holding fractional interests is the ordinary situation and it makes licensing difficult.

Prior transfers during life. A personality who assigned publicity rights during life may have left nothing, and old merchandising and endorsement agreements sometimes contain broader grants than anyone recalls.

Documentation. The death certificate establishing domicile, the will and its probate, any assignments, any registration, and the entity documents. This file is what a licensee's counsel asks for, and an estate that cannot produce it cannot license.

Standing follows title. Only the holder may sue, and where multiple heirs hold undivided interests, whether one may sue alone depends on the statute and on state property principles. Several regimes require all holders to join, which is another reason to consolidate.

Exclusive licensees may have standing where the licence conveys sufficient rights, on an analysis resembling the patent and trademark inquiries.

Building the Program

Register in month two where a mechanism exists. It is inexpensive, it is sometimes a precondition to enforcement, and executors routinely do not know it exists.

Consolidate fractional interests early. A limited liability company or a trust, with a professional manager and an advisory role for the family. Three heirs become nine grandchildren become twenty-six great-grandchildren, and at some point the asset becomes unlicensable because nobody can assemble consents.

Address governance — who decides on licensing, what requires a supermajority, how distributions work, and what happens on a member's death, because without succession provisions the fragmentation problem simply recurs one generation later.

Take trademark registrations for the name, a signature, or a stylized likeness in the categories the estate will licence. The publicity term expires; a mark used in commerce does not, and thirty years of building the durable layer under an expiring right is the whole long-term strategy.

Maintain quality control over licensees, which is a commercial protection and, for trademarks, what prevents abandonment through naked licensing.

Calendar the copyright termination windows. 17 U.S.C. § 203 for post-1977 grants and 17 U.S.C. § 304 for older ones. Strict, permanently closing, and frequently worth more than the publicity right.

Catalogue and secure the archive, separating ownership of objects from ownership of copyrights, and licensing access as a separate transaction with separate consideration.

Write the licensing policy before the first request. Permitted and excluded categories, quality standards, approval rights with a stated turnaround, territories, and terms. An estate that decides case by case will be inconsistent, and inconsistency dilutes the asset.

Track continued use where the statute conditions the right on it, because under a non-use termination model a licensing gap is a countdown rather than a quiet period.

Digital Replicas

Address it in the policy before a request arrives, because the answer given under time pressure tends to be broader than the estate intended.

Apply the same specificity required of the living. Use description, exclusions, term, separate compensation, data set and model retention, destruction, and assignment.

Check the statute. N.Y. Civ. Rights Law § 50-f addresses deceased performers and replicas expressly, and other regimes are following.

Consider what the personality would have wanted, and whether they left any instruction. Where none exists, the family's recollection is the best available substitute and it should be recorded once rather than debated repeatedly.

Remember the archive question. Decades of recorded material capable of training a model, held under agreements written before the technology existed, is the largest unresolved commercial question in this area — and for a deceased performer, consent is required where the state recognizes a descendible right. See Digital Replica and Synthetic Media Toolkit.

Valuation, Tax, and Enforcement

Three valuation approaches, and clients conflate them. Cost, which says nothing about worth. Market, which requires comparables that rarely exist. And income, which reflects value and is hardest to establish.

What makes a right valuable. Continuing licensing revenue, a clean chain of title, registration where required, remaining term, a trademark position underneath, and an archive the estate actually controls.

The estate tax problem. A publicity right in the gross estate is taxable at a value the estate must establish and fund, and the difficulty is that value depends on future licensing that has not happened. Estates have faced substantial assessments on assets producing no current income — the executor's fourth question — and the disputes turn on discount rates, comparable licences, and whether a hypothetical willing buyer would pay anything at all.

Engage an appraiser who has valued these before, early enough to inform the return rather than to defend it.

Enforcement, sequenced by cost. Marketplace and retailer takedown, then a demand letter, then suit. Most post-mortem infringement is low-value, high-volume merchandising found by monitoring rather than by chance, and marketplace programs resolve the overwhelming majority at a fraction of the cost of anything else — particularly where the estate holds trademark registrations rather than only a publicity right.

Confirm standing before suing. Title, registration where required, and whether all fractional holders must join.

Pick the claim that travels. State publicity where descendible, trademark under 15 U.S.C. § 1114 where registered, and false endorsement under 15 U.S.C. § 1125 where the use suggests sponsorship. The federal claims do not depend on state descendibility at all.

Seek injunctive relief early. Fed. R. Civ. P. 65.

Enforce consistently, because selective enforcement invites acquiescence arguments and undermines paying licensees.

Respect the expressive-work boundary. An estate that sues over a biography or a documentary loses publicly and damages its standing for the claims that matter.

When No Descendible Right Exists

A personality domiciled at death in a state recognizing no post-mortem right leaves no publicity asset. Estates treat this as the end of the analysis and it is not.

False endorsement survives. 15 U.S.C. § 1125(a) reaches uses suggesting sponsorship or approval and does not depend on state descendibility. It requires likelihood of confusion, which fits advertising and endorsement uses well, and it is the single most useful fact in this area for estates in non-descendible states.

Trademark registration is available, enforceable indefinitely on continued use, with the estate as the consenting party under 15 U.S.C. § 1052(c).

Copyrights remain, enforceable on their own terms, with terminations potentially recapturing more.

Archive access is a licensable asset independent of any rights analysis.

Contract rights continue.

The conclusion. A program built on trademark, copyright, archive access, and false endorsement is frequently more durable than one built on a publicity term that will expire — which is why the estates that thrive across generations usually built it either way.

Diligence, Sale, and Succession

What a buyer asks for. The domicile evidence and the death certificate. The descendibility analysis. Registration certificates. The complete chain of title. Entity documents for any consolidation. Every licence granted, live or expired, with its exclusivity and territory. The trademark portfolio with renewal status. The copyright inventory with termination status. The archive inventory and location. The enforcement history. And the tax basis.

What sinks a transaction. A gap in the chain. An unregistered right in a registration state. Unconsolidated fractional interests, so a seller cannot convey the whole. A prior exclusive licence nobody remembered. Lapsed trademarks. A closed termination window.

Structuring the sale. Assets rather than the entity in most cases, with each of the five conveyed by instrument, recordation for trademarks and copyrights, and an express assignment of accrued claims — without which the buyer acquires no right to sue for past infringement.

Earnouts are common, because value depends on future licensing and an estate with no assets beyond the right cannot indemnify meaningfully.

Succession within a family raises the same questions on a longer horizon, and the consolidation entity's operating agreement should address what happens on a member's death.

Charitable structures. Some estates place the persona in a foundation with a licensing mandate tied to the personality's causes, which addresses valuation, governance, and legacy at once and forecloses family income — a decision for the personality during life rather than for the heirs afterward.

Planning During Life

Almost every problem above is cheaper to solve before death, and none of it appears in a standard estate plan.

Raise the domicile question with any client whose persona has value. Five minutes, and nobody else advising them will raise it.

Devise the right specifically, which avoids both the residuary question and fragmentation in one clause.

Transfer to an entity during life where fragmentation is foreseeable, which also values the asset at transfer rather than at death.

Name a competent administrator, and consider a special fiduciary or co-trustee for intellectual property, because the executor competent to handle real property may not be the right person to run a licensing program.

Take the trademark registrations now. Cheaper during life, use established earlier, and they outlive everything else.

Leave a letter of wishes covering permitted and excluded categories and the position on digital replication. It is worth more than years of family argument.

Inventory the assets while the client can identify them, because executors routinely spend the first year discovering what exists and where it is.

Register during life where permitted, and calendar the post-death filing where not.

The First Year, in Order

For an executor who has just discovered that a publicity right may exist, the sequence is short and the order matters.

Month one. Establish domicile with documents, because the evidence disperses quickly and everything downstream depends on the answer. Determine whether a descendible right exists, its term, its conditions, and the attributes it covers.

Month two. Register where a mechanism exists. Locate and read the will or trust for the right — specifically devised, passing under the residuary, or unaddressed.

Month three. Inventory the other four assets: trademarks existing or available, copyrights held and by whom, the physical archive and its location, and contracts generating income. Calendar the copyright termination windows, which are strict and permanently closing.

Months four to six. Consolidate fractional interests while the holders are few and reachable. File trademark applications in the categories the estate will licence.

Month six. Write the licensing policy, including the position on digital replicas. Engage an appraiser for the estate tax valuation, early enough to inform the return.

Ongoing. Licence, enforce, renew — and under a non-use termination model, keep licensing, because that is what keeps the right alive.

The pace. Less than a year of part-time attention from a competent fiduciary. Estates that skip it do not lose the right at once. They lose it gradually, through registration failures, fragmentation, missed windows, and lapsed use, and by the time anyone notices there is nothing left to administer.

Working With the Family

The legal analysis is the easy part. Administering a persona means administering a family's relationship to someone they knew, and the practical failures are rarely doctrinal.

Separate the fiduciary role from the family role. The publicity right is a commercial asset requiring commercial judgment.

Get the licensing policy agreed in writing, early. A family that agreed in advance on excluded categories will not relitigate each request; one that decides case by case will.

Expect disagreement about legacy versus revenue. Some heirs want maximum exploitation and others want none. The consolidation entity's governance should anticipate this with supermajority requirements for category expansions, a professional manager with defined authority, and a dispute mechanism short of litigation.

Look for a letter of wishes, and where none exists record the family's recollection of the person's views once rather than debating it repeatedly.

Handle the archive's emotional weight separately from its commercial value. Physical materials carry meaning beyond their price, and a licensing program that treats a personal archive as inventory will fracture a family.

Manage expectations about value. Most post-mortem publicity rights generate little. An estate expecting a substantial income stream from a persona with modest commercial demand will be disappointed, and the disappointment usually arrives after significant administration expense.

Two Estates, Contrasted

The one that works. A musician who died in the 1990s, domiciled in a state with a long descendible term and a registration mechanism.

Year one: registration filed; the will read, with the right passing under the residuary to a surviving spouse and two children; copyrights inventoried, showing the estate held a portion of the catalog and none of the photographs; termination windows calendared for two grants.

Year two: interests consolidated into a single limited liability company with a professional manager and a family advisory committee; trademark applications filed for the name and a stylized signature in recordings, apparel, and instruments.

Year four: termination exercised on both grants in the correct windows, recapturing rights worth more than the publicity licensing had produced to date.

Years five onward: a published licensing policy with excluded categories, artwork approval on a ten-day turnaround, guaranteed minimums in every category licence, marketplace enforcement against unauthorized merchandise, and continuous trademark renewals.

The publicity term expires within a few decades. The trademarks do not. Thirty years of building the durable layer under an expiring right is the whole strategy, and it was visible in year one.

The one that does not. A film actor who died in the 1970s, domiciled at death in a state whose courts later held the right does not survive death.

The estate spent years litigating domicile, arguing the actor's real home had been elsewhere, and lost. No publicity right existed to administer.

What it had and never used: a false endorsement claim under 15 U.S.C. § 1125(a) against uses suggesting sponsorship; a trademark position it never registered; and copyrights in a body of photographs it owned outright and never catalogued. The archive sat in storage. Fractional interests dispersed across three generations. By the time anyone assembled a licensing proposal, obtaining consents was impractical.

The difference. Not the value of the personality. Whether anyone did the work in the first year, and whether anyone understood that the publicity right was one of five assets rather than the only one.

Where Estates Go Wrong

Nobody registers. The single most common and most avoidable failure, because the executor does not know the requirement exists and general estate counsel has never encountered it.

Fragmentation is left alone, until the asset becomes unlicensable.

The chain is never documented, so the estate believes it holds the right and cannot prove it when a licensee's counsel asks.

Trademark is neglected, and the publicity term expires with nothing durable underneath.

Termination windows are missed. 17 U.S.C. § 203 and 17 U.S.C. § 304 have strict windows that close permanently, and the recaptured rights are frequently worth more than the publicity right the estate is focused on.

The archive is treated as licensed. Owning a photograph is not owning the copyright in it.

Licensing lapses under a non-use model, and the right terminates while everyone assumes it is being preserved.

Overreach against expressive works. Demanding licensing for a biography or a documentary loses, publicly, and damages the estate's standing for the claims that matter.

Nobody plans for the tax. An asset with no current income is assessed at a value the estate must fund, and the resulting sale of the very rights being administered is an outcome that planning would have avoided.

The wrong fiduciary. A licensing program run by someone with no commercial judgment either does nothing or does damage, and both outcomes are permanent.

Accrued claims not assigned on a sale, so the buyer cannot sue for past infringement.

What Licensees Should Ask

The analysis inverts for the party seeking a licence, and an estate that can answer these without delay closes deals.

Where was the personality domiciled at death? Ask for the death certificate. It is not an impolite question; it is the first element of the estate's title, and an estate that hesitates to answer it has told you something important about the diligence behind the offer.

Does a descendible right exist under that state's law, and is it still running? Terms expire and non-use terminates the right in some states. An estate licensing an expired right is selling nothing.

Is it registered where registration is required? Ask for the certificate.

Who holds it, and can they grant alone? Fractional interests are the norm, and a licence from one of five holders may be worth less than it appears or may be a defense against the others.

Which of the five assets is being licensed? An estate that answers "all of them" without documentation has not done the work.

What warranties will the estate give, and what indemnity stands behind them? An estate with no assets beyond the right cannot indemnify meaningfully, which is a reason to structure payments over time.

Have others been licensed in this category? Exclusivity claims are frequently overstated, and prior grants surface later — usually after the licensee has invested in tooling and packaging.

Is the intended use within an expressive-work carve-out anyway? Licensees pay for permission they do not need for biographical, documentary, and news uses more often than anyone admits. Ask counsel before paying.

What is the position on digital replicas? Increasingly the question that matters most in any long-term licence, and the one estates are least prepared for — because it was not contemplated when the persona was inherited and it is now the first thing a technology-adjacent licensee wants to know.

A Suggested Reading Path

In the first month of an administration:

For the underlying right:

For replicas and the archive:

Primary Authorities

| Authority | Proposition | |---|---| | Cal. Civ. Code § 3344 | Right during life | | Cal. Civ. Code § 3344.1 | Post-mortem right; registration | | Tenn. Code § 47-25-1104 | Term; continuation on exploitation | | Tenn. Code § 47-25-1105 | Personal rights protection | | Ind. Code § 32-36-1-8 | Broad attributes; long term | | N.Y. Civ. Rights Law § 50-f | Deceased performers; registration; replicas | | N.Y. Civ. Rights Law § 51 | Civil action | | 15 U.S.C. § 1051 | Trademark application | | 15 U.S.C. § 1052 | Registrability; consent for names | | 15 U.S.C. § 1114 | Registered mark infringement | | 15 U.S.C. § 1125 | False endorsement | | 17 U.S.C. § 203 | Termination of post-1977 grants | | 17 U.S.C. § 302 | Copyright duration | | 17 U.S.C. § 304 | Renewal and termination | | 17 U.S.C. § 201 | Copyright ownership | | Fed. R. Civ. P. 65 | Injunctive relief |

Forms and Templates

The License Agreement Template is the estate's principal instrument, and the provisions that matter here are ones a general form handles lightly: which of the five assets is being granted, approval rights over artwork and copy with a stated turnaround, quality standards and inspection, guaranteed minimums so a dormant licensee does not tie up a category, and the two provisions estates routinely omit — a no-challenge covenant and a statement that goodwill from the licensee's use inures to the estate. The Assignment Agreement Template is the instrument for consolidating fractional interests into a single entity and, later, for conveying the assets on a sale, and it must carry an express assignment of accrued claims. The Portfolio Inventory Template is the register of all five assets — trademarks with renewal dates, copyrights with termination windows, archive location, licences granted, and the registration certificate — and it is what a buyer's counsel will ask for. The Cease and Desist Template is the first step in the enforcement sequence, and it works best when it cites a trademark registration alongside the publicity statute.

Related Toolkits and Checklists

For the living-person analysis these rules extend, the Right of Publicity and Personal Brand Toolkit covers name, image, likeness, and endorsement practice. For the replica question every estate now faces, the Digital Replica and Synthetic Media Toolkit. For the copyright layer and the termination windows, the Copyright Fundamentals Toolkit. And where the archive will be used to train a model, the AI, Content, and IP Toolkit covers the training and output questions.