Anyone with an Internet connection or a television knows how obsessed Americans are with celebrities. Because of this fascination, rights of publicity—the rights to exploit a person’s name or likeness for commercial purposes—have become increasingly important and contentious for marketers and advertisers. A decision issued last month striking down as unconstitutional key portions of Washington State’s publicity statute illustrates the growing focus on publicity rights. Experience Hendrix, LLC v. HendrixLicensing.com, Ltd., 2011 WL 564300 (W.D. Wash. Feb. 8, 2011).

Unlike copyright, where federal law effectively preempts the field, and trademark, where the Lanham Act applies nationally and state laws often follow federal precedent, rights of publicity are controlled by a patchwork of varying state statutes. Thirty-one states recognize rights of publicity either by common law or by statute, and others are considering legislation to do so. Fourteen states provide by statute that the right is descendible after death to an individual’s estate, but the laws vary concerning how long after death the right lasts and whether publicity rights had to have been exploited during the deceased’s lifetime. New York—home of many celebrities—is one of two states that do not recognize a descendible right of publicity (accordingly, the heirs of Marilyn Monroe, a New York domiciliary when she died, hold no publicity rights).

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