Long after they die, cultural icons such as Elvis Presley, Marilyn Monroe, and Jimi Hendrix continue to earn millions of dollars annually. Despite the tremendous amount of money earned by marketing the images of certain late celebrities, the laws conferring and governing the postmortem right of publicity are varied and often unpredictable. In most states, the right to profit from the image of a deceased person depends entirely upon the law of the jurisdiction in which the deceased was domiciled at the time of death. Certain state legislatures, however, have passed statutes conferring this right on persons domiciled outside of their respective borders, and these statutes may have potentially dramatic effects on businesses marketing products incorporating the images of celebrities. This Note argues that statutes of this nature are unconstitutional under the Due Process Clause, the Full Faith and Credit Clause, and the dormant Commerce Clause, and that the postmortem right of publicity should be governed in all states by the law of the jurisdiction in which the deceased was domiciled at the time of death.
Robert Rossi, Jurisdictional Haze: Indiana and Washington’s Unconstitutional Extensions of the Postmortem Right of Publicity, 57 B.C. L. Rev. 297 (2016), https://lawdigitalcommons.bc.edu/bclr/vol57/iss1/8