Technology forces us to contemplate a counterpart to the right of privacy—Brandeis and Warren’s “right to be let alone”—for the age of artificial intelligence: the right to be left dead. Traditionally, it has been presumed that even if Brandeis and Warren’s right constitutes “the most comprehensive of rights and the right most valued by civilized men,” it does not apply to the dead. The question is whether we need a new approach at a time when technology can reanimate anyone and make them behave in a manner indistinguishable from their living presence. This Article interrogates the need for a right to be left dead and takes some preliminary steps towards defining its contours, chief among them an awareness that an individual right to prevent unauthorized reanimations of the dead must look very different than the existing privacy, consumer protection, and property laws marshalled against unauthorized invocations of the living. A new right to be left dead can serve important social goals, but it must be narrowly construed, yielding to the critical interests of the living when necessary. To the extent legislatures and courts are beginning to grapple with the nascent problem of digital reanimation, they have failed to account for the most fundamental dividing line in existence—the line between life and death.

Introduction 

You could argue that death has never been less meaningful than it is today. Long-dead celebrities wish us “Happy New Year” and share their views on current social movements like Black Lives Matter.[1] Artificial intelligence (AI) allows anyone to generate new writings and artworks in the style of long-ago authors and artists.[2] Digital detritus—the old texts and social media posts that never really disappear—can now be mined to permit new conversations with departed loved ones.[3] Musicians and actors of the past are reanimated for present-day entertainment.[4] In short, now, even after death, people can be made to say words they never said, appear in places they never were.

Does a world where dying no longer seems like “one of the great events of life”[5] demand legal intervention? At the end of the nineteenth century, new technological forces, such as photography and mass media, triggered their own set of concerns about a mounting loss of personal autonomy.[6] In response, Louis Brandeis and Samuel Warren articulated a new right, “the right to be let alone,”[7] which has been widely embraced in both statute and common law.[8] Although now construed as a privacy right, Brandeis and Warren’s argument relied on intellectual property law for much of its scaffolding. Brandeis and Warren pointed out that if copyright laws sensibly gave authors the right to make decisions about their creations, including whether they should ever be disseminated to the outside world, then similar protections should be extended to other personal actions and characteristics that do not take the form of a creative work: “If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity.”[9]

Technology forces us to contemplate a new counterpart to Brandeis and Warren’s right for the age of AI: the right to be left dead. Traditionally, it has been presumed that even if Brandeis and Warren’s right constitutes “the most comprehensive of rights and the right most valued by civilized men,”[10] it does not apply to the dead.[11] Although other jurisdictions view the matter differently, in the United States, the assumption is that dead people can feel no embarrassment and, hence, have no claim for violations of the right to privacy.[12] As one court explained, “Once a person is dead, there is no extant reputation to injure or for the law to protect.”[13] The question is whether we need a new calculus at a time when technology can reanimate anyone and make them behave in a manner indistinguishable from their living presence.

Legislators have already begun to answer “yes” to this question. In 2020, New York explicitly created a right to prevent unauthorized computer-generated likenesses both before and after death.[14] For those domiciled in New York and “regularly engaged in acting, singing, dancing, or playing a musical instrument,” the law creates a property right in “realistic” computer-generated performances that the individual did not actually perform.[15] Louisiana passed a law in 2022 providing a cause of action for “misappropriation of identity.”[16] Also styled as a “property right,” the law gives individuals the ability to block unauthorized commercial use of a person’s identity for fifty years after the person’s death.[17] The Louisiana legislature specified that its new legal entitlement includes the use of someone’s identity through “digital replicas.”[18] Other states are discussing using existing right of publicity laws with postmortem terms to combat unauthorized digital appropriations of the dead[19] and are enacting new laws to regulate ownership of the raw material in online accounts after a user has passed.[20] In Congress, representatives are holding hearings to discuss the need for a “federal right of publicity” to meet the challenges of AI.[21]

Even though both the New York and Louisiana laws apply to after-death uses, neither law makes any distinction between life and death. The same criteria for eligibility for the property interest, its infringement, and defenses apply whether the personality at issue is alive or dead.[22] This is a mistake. Death matters, or at least it should, legally speaking. Death changes the arguments we might marshal against uses of AI to make people look and sound like they are actually doing and saying things they never did. Concerns over consumer protection, privacy interests, and property entitlements all need to be reevaluated when the person whose image is being manipulated is no longer with us. Reanimating dead subjects reduces the probability of consumers relying on a false endorsement, severely curtails any privacy interests at stake, and should cause us to question the policy rationales behind any property interests that the legal system awards to the decedent. To the extent legislatures and courts are beginning to grapple with the nascent problem of digital reanimation, they have failed to account for the most fundamental dividing line in existence—the line between life and death.

This Article interrogates the need for a right to be left dead and takes some preliminary steps towards defining its contours, chief among them an awareness that an individual right to prevent unauthorized reanimations of the dead must look very different than laws marshalled against unauthorized reanimations of the living. After Part I describes the rise of businesses using AI to exploit the lack of a right to be left dead, Part II analyzes the law of descendibility. It turns out that the legal treatment of interests after death varies greatly depending on whether the interest is categorized as a dignitary right, protection for consumers, or property entitlement. In general, dignitary rights die with the person, consumer protections continue posthumously, and property entitlements fall somewhere in between. Next, Part III explains why property law’s postmortem rules should govern a right against digital reanimation. It also explains why, in their current form, existing laws protecting against unauthorized commercial use of someone’s identity fail to adequately distinguish between the interests of the dead and the living. The Article ends by offering a blueprint for legislators and judges to construct a right to be left dead with instructions for testamentary direction, duration, and a prior exploitation requirement appropriate to the promises and pitfalls of resurrection through AI.

I. Inside the Growing Reanimation Industry

A growing array of entrepreneurs use artificial intelligence to resurrect the dead into various digital afterlives. In doing so, they are beginning to change the nature of grieving, selling, and entertaining.

A.     Grieving

When loved ones pass, those left behind grieve, mourning the end of opportunities for shared lived experiences. With digital reanimations, however, the line separating the living and the dead has become more permeable. At least for those still breathing air, new technologies offer ways to continue to interact with the deceased, or at least increasingly close facsimiles of them.

Some of these facsimiles are visual. Kanye West gifted Kim Kardashian a hologram of her late father.[23] West is not known for always displaying the correct amount of emotional sensitivity, but we can all appreciate how a moving three-dimensional replica of someone might be more compelling than a static photographic image. The genealogy site My Heritage sparked a viral phenomenon when it created its Deep Nostalgia tool, a technology that lets users upload old photographs and then watch as the friends and family in those photographs bob their heads and smile.[24] In a variety of ways, moving images of people produce deeper and more positive reactions in observers than fixed versions.[25]

At this point, however, most of the facsimiles designed to help us mourn are aural or textual. The latest incarnation of AI-driven chatbots have received a lot of attention for their potential to exert their own “personalities” beyond the desires of either their inventors or consumer interlocutors.[26] Less attention has been given to chatbots designed to channel the dead. Nevertheless, a key planned usage of these chatbots is as near-perfect surrogates for now-gone humans.[27] Armed with samples of things once said by a living person, businesses can now market believable digital replacements to loved ones who miss friends and relatives. Old texts and social media messages become the raw material for a machine version that sounds like someone we knew well but can no longer talk to in the flesh.[28]

Monetizing a digital afterlife is not just the game plan for a few small startups. Character.AI, valued at over $1 billion, allows users to create their own chatbots that take the form of both fictional characters (e.g., Yoda) and real people, living and dead.[29] Along similar lines, Microsoft secured a patent on software that could bring back the deceased in chatbot form.[30] In 2022, Amazon turned tragedy into business opportunity, touting its plan to turn dead loved ones’ voices into digital assistants and “make the memories last,” particularly since “so many of us have lost someone we love” during the pandemic.[31]

B.    Selling

While some businesses are trying to satisfy the demand for continuing conversations with dead loved ones, others are looking for cost-effective yet compelling celebrity endorsers for their products.[32] But there can be drawbacks to celebrity advertising. Most endorsers know what their blessing for a brand is worth and charge accordingly. In addition, celebrities sometimes make news for the wrong reasons, closing off or even reversing what once might have been a promising stream of favorable consumer attention. For example, Wrigley entered into a lucrative deal with R&B singer Chris Brown, which included Brown embedding Wrigley’s slogan, “Double your pleasure, double your fun,” into one of his hit songs.[33] But soon after, the chewing gum company had to distance itself from Brown after he pled guilty to assaulting his then-girlfriend, Rihanna.[34] Similarly, Nike no longer wanted to associate itself with cyclist Lance Armstrong once he became embroiled in a doping scandal or basketball star Kyrie Irving after he made anti-Semitic social media posts.[35]

Unlike the living celebrities described above, dead celebrities no longer have the capacity to make unpredictable choices in their personal lives that can jeopardize their corporate sponsor’s relationship with the public. In other words, they represent a more stable investment than their living counterparts. It is no wonder then that Steve McQueen, Marilyn Monroe, and John Wayne have all been featured in after-death commercials, their corporate necromancers secure in the knowledge that none of these stars can do anything embarrassing to reduce the impact of their “endorsements” for Ford, Snickers, and Coors.[36] Dead stars also come cheaper as company spokespersons than live ones—an obvious point in their favor when constructing a marketing campaign on a limited budget.[37]

Given these benefits, use of the dead in promotional campaigns has been a longstanding strategy, even before the AI revolution.[38] Two things have recently changed, however, to make revived celebrity marketing even more appealing. First, technology makes these commercial reanimations more and more believable. In a time where it can be difficult to keep track of which famous faces are alive and which are dead, artificial intelligence offers the opportunity to create realistic doppelgangers in ads that audiences may think were actually filmed with a live actor.[39]

Second, more pathways now exist for keeping up a steady drumbeat of communications from dead celebrities, their parasocial magnetism continuing to maintain fan relationships from beyond the grave. Departed stars’ social media accounts continue to send messages to their fans. Jackie Collins wishes a “Merry Christmas” to everyone from her Twitter page even though she has been dead for nine years.[40] In 2023, Barbara Walters, John McCain, and Chadwick Boseman all received blue checkmarks from Elon Musk for maintaining Twitter followings in the millions.[41] Posts from dead celebrity accounts continue to display pictures of the celebrity with inspirational quotes they supposedly favor, offering even more (inaccurate) signs of life. These accounts also show an effort to maintain followers and burnish celebrity brands. Michael Jackson—dead for fifteen years—exhorts his followers to sing his praises and buy his songs, asking them, “What new records will Michael Jackson set in 2022?”[42] These social media representations are very much meant to stay on brand. Amy Winehouse still promotes her music;[43] Joan Rivers continues to tell her jokes.[44]

Social media keeps departed stars in the public consciousness and, somewhat paradoxically, up to date. Just as today’s corporations are increasingly weighing in on social issues to appeal to prospective consumers, dead celebrities, like their living counterparts, take to social media to make their positions heard. As a result, Muhammad Ali shouts support for Black Lives Matter,[45] Bettie Page pleads with her followers to buy her NFTs or celebrate International Women’s Day,[46] and Freddie Mercury promotes LGBTQ acceptance while urging fans to check out the merchandise at www.queenstoreonline.com.[47] Of course, the dead celebrity cannot really post on Instagram or Twitter, but agents and public-relations specialists assume the celebrity’s role, being careful to obscure their own activities.[48]         

Using online technologies to blur the line between life and death helps attract and maintain audiences, which can have dramatic economic implications for celebrity endorsements. Businesses examine numbers of followers and levels of engagement in evaluating potential (dead) celebrity spokespersons. A celebrity’s past work becomes more financially attractive when the dead celebrity can be linked to a massive online following. For example, in the sale of David Bowie’s back catalog of music, an official David Bowie Instagram account that surged to 1.9 million followers in the years after his passing was “pivotal” in convincing the buyer to pay a whopping $344 million for control of the Thin White Duke’s musical oeuvre.[49]

There are even “Dead Q” scores—proprietary data meant to quantify the continuing appeal of deceased actors, musicians, and sports stars—sold to advertisers and movie studios as they evaluate future projects.[50] From a business perspective, it is imperative for those managing the affairs of departed celebrities to keep them alive in the public consciousness. New technologies for capturing movement, rearranging actual sounds into new ones in the same vocal pattern, and presenting recreated personas in three dimensions all make it easier to believe that the dead celebrity is truly communicating to us in the present, preserving their memory while offering new opportunities for lucrative postmortem advertising.

C.     Performing

As AI reanimation changes the nature of how we grieve and how businesses sell, it is also being deployed to entertain. Digital clones can impersonate departed singers and actors so well that they satisfy some demand for the original. Even though Elvis Presley and Whitney Houston are long gone, Elvis appeared on American Idol (to sing a duet with a live Celine Dion),[51] and Whitney is in residency in Las Vegas.[52] Concert fans experience songs sung by the lifelike reanimations of Tupac Shakur, Buddy Holly, Roy Orbison, and Maria Callas, among others.[53] Even though he died in 1997, a “stunningly lifelike” avatar of Biggie Smalls, one that looked “very real” to his mother, performed alongside live rappers for a pioneering concert in the metaverse in 2022.[54]

It is not just in music that technology is satisfying continued demand for the presence of deceased celebrities. Death no longer represents the final curtain for movie stars, either. In some situations, digital technology allows an avatar to seamlessly complete a star’s scenes in a film when the star dies during production. This is how Paul Walker continues to perform in the Fast & Furious franchise and how Carrie Fisher was able to conclude her role as Princess Leia in the Star Wars films.[55] But the use of digital reenactors is not limited to continuations of an existing role. Plans were in the works for James Dean to play a starring role in a new film some sixty years after his death.[56] A documentary film about celebrity-chef Anthony Bourdain used a synthetic recreation of his voice (without disclosure to audiences) to have him speak lines he never actually said.[57] Concern over movie studios preferring more cost-effective reanimations to pricey living actors is so great that it led, in part, to a 2023 strike by the Screen Actors Guild.[58]

The rise of the digital reanimation industry in the arenas of grieving, selling, and performing has not gone unchallenged. Some want to protect the dignitary interests of the dead, lambasting ads featuring departed celebrities like Kurt Cobain and Bruce Lee as untrue to their legacies or just generally tasteless.[59] Others fear that audiences will be hoodwinked by deepfakes of the dead, adding to the toxic stew of disinformation that already plagues society.[60] Tom Hanks mused that, with an “intellectual property” right in “[his] face and [his] voice,” he could exert control over performances that “go on and on and on.”[61] But others blast the casting of no-longer-living stars as fundamentally uncreative.[62] To evaluate these concerns and whether they warrant legal intervention, we need to know more about how they are currently addressed (and not addressed) under the legal status quo.

II. The Interests of the Dead and Those They Leave Behind

Legal rights demand some theoretical justification, and, particularly, when it comes to the regulation of dead bodies, legal actors need to be careful not to allow unthinking reactions to guide their behavior.[63] This Part categorizes three potential rationales for preventing digital reanimation—dignitary interests, consumer protection, and property rights—and then investigates the way the existing bodies of law tied to those rationales address the impact of death on legal claims. It turns out that death has dramatically different legal consequences depending on the body of the law being consulted.

A.     Dignitary Interests for the Dead and Their Families

Perhaps the first interests that come to mind in preventing reanimation of the dead are the dignity and privacy of the deceased.[64] There are certain expressive interests everyone has in being able to shape how they are remembered after they are gone.[65] Even though Microsoft, Amazon, and other entrants in the AI grief industry believe there is a vast market for seemingly seamless connections with missing loved ones, we may personally recoil at the thought of our own unwitting digital revival, upset at the loss of control over how we proceed and are perceived in the world. As with laws against defamation or public disclosure of private facts of the living, one can envision legal protection against AI reanimation based on the privacy interests of the decedent.

Current law, however, concludes that a decedent’s dignitary and privacy concerns are typically insufficient to justify restrictions on the activities of the living.[66] This is not to say that the dead become legal orphans immediately upon leaving this mortal coil. Common law tradition safeguards specific rights to dignified burial and medical privacy.[67] But the law keeps these postmortem protections to a minimum, recognizing that dignitary and privacy interests greatly recede when someone is no longer alive.[68] Generally speaking, there is no action for posthumous defamation—the guiding rationale being that once you are dead you no longer have the capacity for offense.[69]

As a decedent’s privacy interests shrink after death, the interests of the living loom relatively larger. One concern is that protection of dignitary desires from beyond the grave interferes with the interests of those still above ground. As Thomas Jefferson theorized, extending the “dead hand” much beyond life would do too much harm to the competing interests of the living.[70] It may be natural to initially sympathize most with the position of a decedent as compared to the less immediate concerns of other actors. Nevertheless, any legal protection safeguarding a person’s dignity after death also implicates others, from the free speech interests of outsiders[71] to the consequences for family members otherwise bound by unreasonable testamentary instructions.[72]

To the extent decedents do have a cognizable interest in keeping their affairs private, this interest, unlike privacy rights for the living, becomes less compelling as time passes. Take, for example, how the tort of intentional infliction of emotional distress (IIED) is handled at different moments after death. Courts have been receptive to IIED lawsuits for publication of images illustrating the immediate aftermath of a person’s death.[73] But such dignitary interests fade in importance over time. IIED claims can succeed against the publication of death photos, but not, after the subject has passed, for publishing embarrassing images illustrating the subject’s life.[74] Even Rhode Island, which provides an unusual statutory cause of action for defamatory obituaries, requires that the obituary be published within three months of the person’s death.[75] These temporal restrictions on postmortem privacy claims facilitate critical revisions to someone’s historical stature after they are gone. Most would agree that this is a good thing. The public is allowed to make more accurate assessments of the dead—from presidents to pop stars—based on updated evidence and attitudes without the law threatening to freeze past opinions in amber.[76]

Even if death signals a great diminution of dignitary interests for the deceased, one could alternatively argue that a right to be left dead may still be needed, not for the decedent, but for their grieving families. Just as surviving partners and children might resent an interloper usurping their ability to design the right kind of funeral for a loved one, these next of kin might object to digital resurrections that interfere with their ability to mourn in the way they desire. Offensive imagery involving the dead has the potential to inflict psychological harm on living relatives, and one can envision extreme digital manipulations of departed loved ones causing severe emotional distress.[77]

A family’s interest in mourning in their own way is one that the law indeed recognizes in certain contexts. As the Supreme Court explained in a decision rejecting a Freedom of Information Act request for death-scene photographs of Clinton-era deputy White House counsel Vince Foster, “Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.”[78] When Vanessa Bryant, widow of NBA star Kobe Bryant, sued the Los Angeles County Sheriff’s Department for invasion of her and her children’s privacy, central to her claim was the “severe emotional distress” caused by deputies’ sharing of photographs of her husband’s remains from a fatal helicopter accident.[79] In part because of this solicitude for family interests, families enjoy their own legal rights in the care and disposal of bodies of deceased relatives.[80] And one can contemplate other areas besides the handling of physical remains that implicate a family’s ability to cultivate their own space for mourning and memory.[81]

As with the dignitary interests of the dead themselves, conduct that is highly offensive to community norms can make such familial interests weighty enough to justify legal intervention.[82] In fact, family members have sometimes successfully deployed the torts of intentional infliction of emotional distress and public disclosure of private facts to prosecute dissemination of death scene images, block release of information on death certificates, and seek damages for disinterment of bodies or desecration of gravesites.[83] Although physical interference with actual bodies and gravesites are the main targets of posthumous IIED suits, misrepresentations as to death and burial can count as well.[84]

Familial interests in the treatment of a deceased loved one only carry so much legal weight, however. So long as the behavior of outsiders does not rise to the level of “outrageousness”—the test for an IIED claim[85]—it is hard to argue that surviving relatives have been sufficiently harmed from conduct involving an image of or reference to their loved one. As a California court explained in denying a family’s privacy claim against a newspaper that published a photograph of a murdered father and husband, “It is well settled that the right of privacy is a purely personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded. . . . Further, the right does not survive but dies with the person.”[86]

Moreover, as with the decedent themself, a family member’s capacity for outrage over treatment of the decedent will ebb over time. One would expect that emotional distress will be harder, if not impossible, to demonstrate when a dead celebrity’s image is manipulated without permission years after death, as opposed to immediately after the psychological shock of their passing.

In sum, under American law, neither a decedent’s dignitary interests nor their family members’ privacy concerns justify widespread restrictions on the behavior of others. These interests are not nonexistent, but the passage from this world to the next greatly reduces their viability. To state the obvious, our capacity for embarrassment or shock is considerably diminished upon death. Likewise, time has a way of softening the blow from a loved one’s passing. Apart from certain exposures and manipulations that would shock the conscience of a reasonable person, the law is clear that postmortem dignitary rights must take a backseat to other interests. To the extent the objection to human digital replicas stems from their potential for fooling audiences into believing that they are viewing or hearing a living human being, we need to interrogate another legal territory: consumer protection.

B.     Consumer Protection for the Living

Reports of deepfake technology being used to replicate unaware celebrities in commercials are starting to increase.[87] Bruce Willis found himself defusing a bomb in a pitch for a telecommunications company.[88] A virtual Elon Musk shilled for a real estate firm.[89] AI versions of Tom Cruise and Leonardo DiCaprio appeared in a promotional video for a technology company.[90] None of these living A-listers gave their permission. Given the documented influence of celebrity endorsements on buying behavior,[91] such deepfakes could misleadingly influence consumer decision-making. Dead celebrities could prove particularly appealing targets for unauthorized commercial reanimations. After all, not only are dead celebrities more cost-effective spokespersons,[92] but commercial interests might figure that they are less likely to be sued for misleading invocation of a celebrity if they utilize the identity of someone no longer alive. A dead celebrity cannot personally hire an attorney and, as we just learned, is unlikely to successfully state a claim for invasion of privacy under existing law.[93] Given the growing importance and commercial potential of dead celebrity endorsers, heirs and rights-management firms will want to prevent these unauthorized reanimations.[94]

Luckily for those representing celebrity estates, unlike the field of dignitary torts, consumer protection law does not extinguish rights to legal action upon death.[95] Celebrities can sue for false endorsement under federal trademark law, contending that unauthorized use of their name or likeness gives consumers an incorrect impression about their association with the item sold or the company selling that item.[96] The courts have explicitly held that such suits can proceed even when the person at issue has died.[97] As explained in a case involving the unauthorized sale of merchandise featuring reggae legend Bob Marley’s name and likeness, “[T]he fact of the celebrity’s death does not preclude a [trademark infringement] claim. Rather the ‘determinative issue’ (in any [trademark infringement] claim) is likelihood of confusion.”[98] If an appreciable percentage of consumers falsely believed that the estate or heirs of a well-known individual authorized the use of their name or likeness on a commercial product, the law would give those successors in interest a right to sue.[99]

Take, for example, the case of collectable plates and dolls bearing the name and likeness of Princess Diana sold after her death without the permission of her estate. The court hearing the matter concluded that the federal trademark statute used “language broad enough to encompass a claim by a deceased celebrity’s Estate or by any celebrity’s assignee.”[100] Although issues of standing can complicate actions involving the use of deceased celebrities as commercial signifiers, the Princess Diana case is not an outlier. The estates of Bob Marley, Bruce Lee, John Cheever, Elvis Presley, Agatha Christie, and John Facenda (the NFL’s “Voice of God”) have all presented claims against unauthorized commercial users under federal trademark law.[101] Using AI to create a walking, talking—yet unauthorized and deceased—celebrity spokesperson is likely to trigger a trademark lawsuit for confusing audiences.[102]

False advertising law is another potential mechanism for preventing unauthorized invocations of a person after death. Unlike a claim for trademark infringement, a false advertising plaintiff need not show that consumers were fooled into thinking that the deceased celebrity sponsored or approved the defendant’s product.[103] Instead, the plaintiff must demonstrate false or misleading statements in commercial messaging that are material to purchase.[104] For example, an untrue claim that “100% of the price” from the sale of a product would go to the decedent’s own charities would be actionable for false advertising.[105] Moreover, standing to file federal false advertising claims is extremely broad. False advertising plaintiffs are typically direct competitors of the advertiser, but they do not have to be so long as they suffered harm.[106] If the defendant’s advertising was the proximate cause of lost sales or reputational damage, any harmed commercial entity may sue.[107]

Because consumer protection law is envisaged as a mechanism for safeguarding consumer welfare, there is no reason to terminate these legal actions upon death of the persona at issue. Strange as it may seem, after-death “endorsements” favorably impact buying decisions.[108] This means that buyers can be fooled into thinking that an ad featuring a reanimated celebrity reflects the celebrity’s blessing, or at least that of their successors in interest, and this supposed blessing may be material to purchasing decisions. Hence, even if the advertising at issue invokes a dead person, the relevant harm may still occur, and actions for trademark infringement and false advertising may still proceed. The dead may not feel embarrassment, but a misleading message involving a decedent can still injure their successors in interest and the consuming public.[109]

C.     Property Rights for the Dead

Finally, there is the question of death’s effect on property rights. One might think that the answer to the question of whether a property right should be descendible is obvious. Unlike dignitary interests, which, for the most part, expire with the individual, property interests typically last beyond death. The standard rule is that property continues to be transmitted from successor to successor ad infinitum, or at least so long as the item retains value.[110]

Nevertheless, legal tolerance for the continuation of property interests after death is not unlimited. Descendibility of property can be prohibited or restricted in two particular scenarios: (1) when the decedent has expressly called for the property interest to expire upon their death and (2) when, despite the decedent’s wishes, transfer of the property interest beyond death produces suboptimal allocations of resources.

1.     When the Decedent Elects to Make Their Property Indescendible

In general, the law disfavors encumbrances that prevent the free transfer of property, and this includes property’s disposition after death.[111] But there are times when the law allows the decedent to extinguish all rights in the object or legal entitlement upon death. The Supreme Court has described the right to bequeath one’s property at death as “one of the most essential sticks in the bundle of” property rights.[112] This right of testamentary disposition for property is motivated, in part, by the legal system’s respect for actors’ need to have some say over how their possessions are treated after they are gone.[113] Hence, in some situations, evidence that a decedent would not want their property interest to survive them results in a property interest that is not descendible.

Lior Strahilevitz has documented an eclectic number of successful (and unsuccessful) requests by owners to extinguish their property interests upon death rather than passing this property along to others.[114] For example, the law allows people to be buried in expensive jewelry or clothing, in effect making a choice to destroy the property interest in and value of those items.[115] Default rules meant to respect the decedent’s bodily autonomy require economically valuable body parts to be destroyed with the rest of the decedent, only permitting harvesting and transfer if there is proof of the decedent’s choice to opt in to the organ donation regime.[116] This default rule against descendibility for bodily property includes a decedent’s gametes, which can only be inherited when there is clear proof of the decedent’s intent to reproduce posthumously.[117]

Property rights are extinguished not just for burial items and body parts, but also intellectual outputs and records. For most of this country’s history, U.S. presidents owned their presidential papers and were free to destroy them as they saw fit.[118] Strahilevitz cites the case of President James Garfield.[119] Wounded by an assassin’s bullet on July 2, 1881, Garfield survived for seventy-nine agonizing days, using that window to (legally) destroy large portions of his personal and presidential papers.[120] Even today, Supreme Court justices have complete discretion whether to preserve their records or destroy them, and many have chosen the latter path.[121] In somewhat parallel fashion to presidents and justices, artists and authors often ask for their unpublished works to be destroyed upon death.[122] The key in all of these occasions for allowing a property interest to extinguish upon death is the intent of the decedent.

2.     Indescendibility Based on Suboptimal Allocations

At the same time, even if a decedent wants to transfer their property rights after death, the presumption of unfettered descendibility will not apply when such transfers produce suboptimal allocations. The law acknowledges that the wishes of the dead can sometimes produce undesirable inefficiencies. As a consequence, courts may question a decedent’s desired treatment of their property interests. Even if they accurately reflect the decedent’s wishes, constraints on the alienability and use of a decedent’s property are disfavored.[123] According to this argument, it is wiser to leave questions of the use of property to the living, who are in a much better position to husband resources in valuable ways in the face of changing circumstances. No matter how prescient, testators craft instructions with imperfect information and, upon death, are unable to respond to new conditions.[124] A trust made with instructions not to diversify the trust’s investment portfolio may be looked at skeptically and revised upon complaint of the trust’s beneficiaries for just this reason.[125] The thinking here is that allowing too much dead-hand control over property—in effect destroying the property’s value—shortchanges future generations by holding them hostage to the anachronistic requests of their forebearers.[126]

At other times, legal rules regarding descendibility may be changed because property allocations have, in the aggregate, become more inefficient over time. For example, San Francisco taxicab medallions suddenly became indescendible (and inalienable) in the 1970s.[127] Because middlemen (rather than actual drivers) had taken over the lucrative taxicab market in the city, San Francisco voters chose to extinguish the property right in medallions upon death to reset the market and allow the reallocation of rights to better support the drivers themselves.[128]

It is important to recognize that the law’s definition of suboptimal does not always have to implicate inefficiency and that just what makes a particular treatment of a property interest after death “suboptimal” can be subjective. Inheritance restrictions sometimes take on a paternalist cast, not because fulfilling the decedent’s wishes would be inefficient but because policymakers disagree with particular allocative choices. Take, for example, hereditary titles. Departing from English tradition, the U.S. Constitution outlawed noble titles (e.g., “duke” or “earl”) meant to run forever with a particular family name.[129] The Framers viewed this particular sort of perpetual property right as inegalitarian and antithetical to the American project. As David Horton recounts, this normative objection to inherited titles led to a particular kind of property being phased out of existence by outlawing its inheritance.[130]

A more modern example comes from the “forced share” laws that exist in every state but one.[131] These laws require that a portion of the decedent’s estate be transferred to the surviving spouse.[132] Hence, even if the decedent’s intent to completely disinherit their spouse is made manifest in a will or other written instrument, the law overrides the decedent’s desired descendibility path. Likewise, bequests that prompt the donee to engage in illegal activity, restrict the donee’s ability to marry, or encourage the donee to divorce will be voided.[133] Although these property rules do not completely erase the decedent’s property interest upon death, they do depart from the default rule of unrestricted descendibility, circumscribing the property owner’s prerogative to posthumously transfer their property as they see fit.[134]

* * *

To summarize, there are three potential legal paradigms for treatment of the interests of the dead. Legally cognizable dignitary interests generally do not survive the death of the rightsholder. Laws against confusing commercial communications do extend beyond the grave, encompassing messages falsely implying endorsement or affiliation with a deceased personality or their estate. Property law presumes descendibility, but this presumption can be overridden in situations where descendibility clashes with the intent of the decedent or would produce allocations against public policy. Armed with this information about the three potential descendibility paths, we can begin to answer the question of what the relevance of death should be when it comes to regulating digital reanimation. Part III explains why the property approach to descendibility is the best fit for a right against digital reanimation. Part IV implements this approach to build specific content for our right to be left dead.

III. Picking a Postmortem Path

One might think that to assign the proper postmortem treatment to digital reanimations, it would be a simple matter of determining which legal category the right falls under. If the right is a dignitary one, then there should be no postmortem protection, just as there is no right against defamation after death. If the right is grounded in consumer protection, then postmortem rights against digital reanimation could continue in perpetuity. If the right is a property right, then posthumous protection would exist somewhere on the spectrum between the postmortem “all” of consumer protection and the postmortem “nothing” of dignitary interests.

The answer, however, is not that simple. Some laws regulating unauthorized commercial uses of a person’s name, likeness, or other aspects of persona (grouped under the umbrella term “right of publicity”) already exist, but they are difficult to categorize. Courts seem to invoke all three of the different postmortem legal categories, sometimes simultaneously, as ballast for their publicity rights decisions. This Part examines the confusing mishmash of rationales deployed in service of publicity rights. It then makes an argument—based on legislative intent, overall precedent, and public policy—for choosing the property rationale as the most appropriate lodestar for a right to be left dead. Finally, it explains how the right of publicity’s postmortem jurisprudence, in addition to being inconsistent from state to state, has failed to fully recognize property law’s rules for descendibility, resulting in the need for the legal interventions described in Part IV.

A.     Property Law Should Govern Postmortem Rights Against Digital Reanimation

A creation of state law, the right of publicity is described as a “tort designed to prevent unauthorized uses of a person’s identity that typically involve appropriations of a person’s name, likeness, or voice.”[135] Even though publicity rights have existed for decades, their legal pedigree remains uncertain. In some sense, they owe their origin to Brandeis and Warren’s effort to define a “right to be let alone” separate and apart from property law. However, publicity rights have also subsequently evolved in express contrast to the right of privacy under a separate property-rights rationale. This uncertain parentage complicates the task of determining the proper scope of a postmortem right against AI reanimation.

1.     Evolving Rationales for Rights in Persona

Brandeis and Warren made the case for their right to privacy by analyzing a selection of common law copyright decisions. According to them, copyright cases protecting against unauthorized dissemination of unpublished manuscripts, letters, and diaries were really safeguarding not the tangible products of intellectual labor, but the “thoughts, sentiments, and emotions” essential to one’s identity.[136] In other words, these copyright cases commonly understood as vindicating economic rights were actually recognizing the dignitary and autonomy interests at stake in a right to be left alone.

Although they agreed with the results of these cases, Brandeis and Warren specified that their right to privacy should be conceptualized as a new, separate tort—neither a species of copyright law nor any other property interest.[137] “[W]here the value of the production is found not in the right to take the profits arising from publication,” they said, “but in the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term.”[138] Property law required economic motivation, but their right, “like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted,” involved the non-economic concerns of “an inviolate personality.”[139] Hence, like these other rights, the right to be left alone needed to be located outside of property law.[140] Brandeis and Warren’s argument for a new non-property right met with swift approval. Many states quickly ratified their own rights of privacy—so many that, by 1939, the American Law Institute codified the right of privacy into the Restatement of Torts.[141]

Against this legal backdrop, individuals in the early twentieth century used various legal means to sometimes successfully block unauthorized commercial use of their names or likenesses, typically appealing to privacy concerns. Courts in this era often described the publicity rights at issue as emanating from Brandeis and Warren’s right of privacy, which, as a dignitary right, could not be asserted by third parties or descend to others.[142] For example, in one early case, the Georgia Supreme Court found in favor of the plaintiff by invoking “a legal right ‘to be let alone’” and likening the “humiliation and mortification” of unauthorized use of his photograph in a newspaper advertisement to being “a slave, without hope of freedom, held to service by a merciless master.”[143]

By the latter part of the century, however, the predominant characterization of publicity rights shifted.[144] They became a property right that could safeguard the economic value in someone’s persona in a way that Brandeis and Warren’s privacy right could not.[145] In 1954, a second influential law review article defined publicity rights as a property interest.[146] Melville Nimmer surveyed what he viewed as the deficiencies of the right to be let alone when it came to the needs of Hollywood’s “well known personalities.”[147] Brandeis and Warren’s right could not adequately protect these famous personalities, he argued, because privacy laws were construed to remedy feelings of embarrassment or humiliation from unauthorized appropriation of one’s persona. Celebrities were worried about something different, not unwanted disclosure but economic control: “Their concern is rather with publicity, which may be regarded as the reverse side of the coin of privacy.”[148]

Just as they once followed Brandeis and Warren, courts now began to follow Nimmer, evaluating publicity rights not as a variety of privacy rights, but as something very different, as an interest that sounded in property.[149] A federal court likened using a photograph of famed actor Cary Grant without his permission to a trespass on land.[150] The Supreme Court took pains to distinguish the right of publicity as a property right, separate from Brandeis and Warren’s right of privacy.[151] Now described as “a species of intangible personal property,”[152] the right of publicity has become freely alienable and, most importantly for our purposes, descendible, at least in some jurisdictions.[153]

Yet Brandeis and Warren’s influence and the personal dignitary interest behind the right of publicity never completely faded away.[154] As a result, even today, the right is sometimes approvingly wielded to protect against personal harms, not just economic ones.[155] California, for example, has both statutory and common law publicity protections, and it allows both to be vindicated not just on grounds of commercial harm but also “injury to the feelings.”[156] Likewise, Georgia has retained its focus on the rightsholder’s privacy interests from a century ago, offering plaintiffs protection against offenses to personal dignity as well as economic injuries.[157] Meanwhile, in a seeming callback to Brandeis and Warren, a contingent of intellectual property scholarship touts noneconomic, dignitary values like “autonomous self-definition,”[158] “integrity,”[159] and “liberty”[160] as the right of publicity’s most appropriate guiding spirits.

These dignitary and property interests coexist with a third argument for publicity rights. Courts cite the need to prevent false information from reaching consumers as a separate reason for enforcing the right.[161] Shoppers can proceed knowing that the celebrity endorsements they see have been authorized by the celebrity themself. Some scholars proffer this information-signaling component as the prime theoretical force behind the right.[162] Testifying to the power of the consumer protection rationale with some members of the bar and the academy, the American Law Institute removed its treatment of the right of publicity from its sections on privacy in the Restatement of Torts, placing it instead in the Restatement (Third) of Unfair Competition.[163]

2.     Legislative Intent and Judicial Precedent

So how do we select among these competing legal subject areas to find the proper postmortem path for a right against digital reanimation? First, there is the question of precedent. The overall weight of legislative intent and judicial authority supports locating rights in persona in the property category. State legislatures have repeatedly chosen to identify rights of publicity with property, not privacy or consumer protection law. The trend began in the 1980s. Kentucky’s right of publicity law, enacted in 1984, explicitly labeled the right as a “property” right.[164] Texas did the same, defining its right of publicity as a “property right” and placing it in its property code.[165] Indiana’s statutory publicity right, enacted in 1994, specifically includes rights of “contract,” “gift,” and “[t]estamentary document,” which it categorizes as “property rights.”[166]

The same behavior has continued up to the present. In a “significant theoretical shift,”[167] New York, which long clung to a privacy-based view of its own right of publicity, explicitly states in its new law recognizing postmortem protection that “[t]he rights recognized under this section are property rights, freely transferable or descendible, in whole or in part.”[168] When the Louisiana legislature passed its right of publicity law, which included postmortem protections, in 2022, the statutory language included this explanation: “Every individual has a property right in connection with the use of that individual’s identity for commercial purposes.”[169]

Although courts still invoke all three justifications for rights of publicity, their favored justification is now property rights, and it has been for a while.[170] An illustrative example comes from the Sixth Circuit. In a 1980 case wrestling with the availability of postmortem publicity rights for Elvis Presley’s estate under Tennessee common law, the court rejected property-based arguments for transfer to the King’s heirs.[171] It contended that, although a few recent cases went in a different direction, “the common law has not heretofore widely recognized this right to control commercial publicity as a property right which may be inherited.”[172] Instead the court drew favorably on an analogy to the right against defamation, a non-property right that expires upon death.[173]

Twenty years later, the Sixth Circuit changed course. It admitted it had to bow to “the weight of authority.”[174] This authority confirmed that interests against commercial appropriation of identity “reflect property rights, as opposed to dignitary rights,” mandating recognition of a descendible right.[175] In this century, as other courts have assessed whether common law publicity rights should be descendible, like the Sixth Circuit, they have concluded that “the right of publicity is more akin to a property right, the breach of which is measured by resulting pecuniary loss, than a personal right whose violation results in emotional injury.”[176]

Notwithstanding the predominant sentiments of the courts, there is still an active debate in the academy about the logic of a property right in commercial use of one’s identity. Admittedly, the arguments sometimes advanced in favor of such a property right are not watertight. A justification for publicity rights based on the need to incentivize the creation of celebrity personalities generally warrants skepticism but particularly when it comes to broad property interests that last beyond the grave.[177] We adopt public personae for a multitude of reasons beyond the unlikely prospect of some licensing revenue for our children and grandchildren.[178]

Another line of argument maintains that, without such a property right centralized in one party, the value of someone’s public image will dwindle as many parties use that identity simultaneously.[179] In contrast, others maintain that we do not have enough information on how best to allocate something as abstract as publicity of one’s identity and contend that publicity’s non-rivalrous nature counsels in favor of more decentralized access to marketable personae.[180]

Despite these objections, at this point it may make sense to stop litigating the right of publicity’s right to exist as a form of property. It has been around in some form for over a century and as a property interest for at least a half-century.[181] The right’s staying power and widespread adoption as a property right can best be explained by intuition. As the authors of the leading treatise on the right posit, “[N]othing is so strongly intuited as the notion that my identity is mine—it is my property to control as I see fit.”[182] Intuitions can sometimes lead us astray and should be interrogated, but they can also reflect a salutary match between social norms and the law.[183] Property law’s raison d’etre is to promote stability through ownership.[184] Our identities might simply be something that we think has value, and that value should be preserved. As Steven Semeraro points out, for plenty of different property interests, there is limited evidence that they incentivize desired behavior or prevent undesirable depletions of resources, yet this has not been considered sufficient reason to abolish them.[185]

3.     Need for a Property Right in Postmortem Performances

In addition to legislative authority and judicial precedent, there is also an argument for a property right in digital reanimation based on need. AI will impact the ways fallen loved ones are mourned and past celebrities sell goods and services, but the law already adequately addresses the dignitary and consumer protection concerns these changes implicate. Reanimation for entertainment purposes is a different story. Actors, musicians, and athletes face new vulnerabilities when it comes to unauthorized recycling of their past performances—an interest that sounds in property.

Existing laws sufficiently protect against the dignitary and consumer protection interests at risk from new forms of digital resurrection. Someone in favor of a new dignitary right to be left dead might argue that the verisimilitude of AI reanimation threatens to do more violence to dignitary and privacy interests than earlier commercial invocations of the dead. A critical account in a book or a news article featuring an embarrassing postmortem photo just does not compare to a digital recreation that appears as alive as the original. This realism holds the potential for greater insults to how we are seen in the world even after we leave it.

Yet existing privacy torts are already calibrated to address more realistic, lifelike representations of the dead and should be able to confront potentially harmful uses of AI reanimation.[186] Take a scenario where someone creates a disturbing avatar of a recently departed loved one for the purpose of harassing grieving family members. In such a situation, the family members could show “outrageousness” and seek damages for IIED.[187] If the privacy of decedents and their families in death and its immediate aftermath is the main concern, it is hard to see why new protections are needed to address postmortem reanimation: the law is already geared to address shocking or outrageous digital uses of the dead.[188]

Consumer protection is also advanced as a reason for installing new rights against digital reanimation.[189] Even if trademark and false advertising law already allow those with a commercial interest in the reputation of a deceased celebrity to enjoin confusing commercial appropriations,[190] deepfakes often make it impossible to actually impose such liability on the malefactor. One of the biggest concerns in the world of deepfake sex videos and deepfakes of political candidates is that the deepfake’s creator may choose to remain anonymous or out of the law’s reach in a remote jurisdiction.[191] Moreover, under current law, online platforms can usually skirt liability for hosting deepfake content posted by users.[192] Given these shortfalls, it might be argued that consumer protection law as currently constituted offers a right without a remedy for the problems of selling via digital reanimation.

Existing consumer protection laws do seem, however, to provide an effective tool against the use of the dead as commercial endorsers. Advertising via a celebrity spokesperson typically does not work unless audiences can identify the spokesperson with a particular seller. It would make little sense for a business to try to burnish its brand through a reanimated movie star yet offer no means for consumers (and their attorneys) to find the business.[193] Unlike the malevolent, anonymous political actor who seeks to interfere in an election by releasing a misleading video, businesses using resurrected celebrities to sell their wares want attribution.[194] We may rightly worry how deepfakes are impacting our political discourse and relationships, but, when it comes to selling via dead celebrities, the law already seems on track for stopping such disinformation from infecting the commercial marketplace.

In contrast, the use of AI reanimation for entertainment reveals potential legal blind spots. There is a stronger case to be made for a property right in one’s performances than for propertizing other aspects of identity. It may be an open question whether the law should or even can incentivize the production of more celebrities, but most would agree that performances on stage and screen are to be encouraged.[195] Just as copyright and patent law are meant to incentivize worthwhile creative activities, an intellectual property right in performances represents a legal stimulus to tangible acts of artistic production that add to our culture.

Moreover, unlike other manifestations of someone’s identity, a performance is external, constructed for others, and has less claim to privacy interests, thereby making it more suitable for conception as a property interest. To the extent that using past performances to cast someone in a new digital role without their approval is objectionable, the objection seems to lie in enriching a party who did not do the work to create those past performances.[196] The only U.S. Supreme Court case addressing the right of publicity involved an unauthorized rebroadcast of a performance.[197] The case involved the fifteen-second act of a man who was shot from a cannon into a net two hundred feet away.[198] Concluding that dignitary concerns were irrelevant, the Court explained that the interest at stake was “proprietary,” analogous to an author’s copyright or an inventor’s patent.[199]

Yet the law’s postmortem recognition of a property interest in reanimated performances is uncertain. Close recreations of film scenes and musical compositions implicate copyright law, but reanimations leveraging old performances to build new ones may not.[200] The Screen Actors Guild asserts its members’ right to prevent unauthorized digital doubles in new films, yet construction of that right is unclear enough that it is the subject of ongoing negotiations with producers and state-by-state lobbying campaigns.[201] As the next section details, the right of publicity’s postmortem jurisprudence is plagued by inconsistency and failure to engage with the broader jurisprudence of property descendibility. Of the three ways in which digital reanimation is being commercialized—grieving, selling, and performing—performing represents the primary area in need of legal clarity when it comes to postmortem rights.

B.     Publicity Rights Law Has Failed to Interrogate Descendibility

If a publicity right for the living represents settled law, such rights for the dead rest on much shakier ground. Many states have not even addressed the issue of postmortem protection. For those jurisdictions that recognize a posthumous right, the duration of protection varies wildly. Moreover, in general, these after-death publicity property interests fail to account for situations where general property jurisprudence would counsel restrictions on descendibility. This means that there is both room for and a need for new laws addressing digital reanimation.

Not every court that has been asked the question has determined that their state’s right of publicity law extends beyond death. Under Massachusetts law, there is no posthumous right,[202] though there have been efforts in the state legislature to change this.[203] No posthumous right exists in Wisconsin either.[204] In all, only about half of the states have chosen to recognize after-death publicity rights.[205]

Furthermore, state legislatures and courts that have decided that publicity rights should extend beyond death vary greatly in the duration of this protection. Torn between the almost total prohibition on dignitary rights after death and the potentially perpetual enforcement of postmortem consumer protection law, individual jurisdictions have come up with a hodgepodge of durations. Virginia’s postmortem right lasts twenty years after death.[206] Pennsylvania’s right lasts for thirty.[207] On the other end of the spectrum, Oklahoma and Indiana have postmortem rights extending a century beyond death.[208] Tennessee—the home of Elvis Presley—has statutory rights that “do not expire upon the death of the individual,” potentially lasting forever so long as the decedent’s identity is “commercially exploited.”[209] The most recent states to provide postmortem publicity rights, New York and Louisiana, chose terms of forty and fifty years respectively.[210] Other states recognize some form of postmortem protection, but without any specification as to how long that protection should last.[211]

In addition to their wide variability in duration, the biggest problem with these postmortem laws is that, ironically, they do not pay enough attention to death. We have learned how important the fact of death is when considering the viability of an action to vindicate a dignitary right.[212] And in the property rights context, death matters too. From taxi-cab medallions to forced share laws, death provides an opportunity, in some circumstances, for government interventions to better allocate resources.[213] Death also offers a chance for property owners to convey their property to new parties, provide instructions for the property’s treatment after the owners are gone, or even destroy the value of the property entirely.[214]

Yet for the majority of posthumous state right of publicity laws, the only way death matters is that it starts the postmortem clock ticking for an eventual end to the property right decades in the future. Other than triggering this time limit, the contours of most publicity rights laws before and after death are exactly the same.[215] A good example comes from Arkansas, which enacted its postmortem right in 2016. The Arkansas law extends publicity rights protection for fifty years after death.[216] Aside from explaining that a majority of any successors in interest must consent to authorize commercial use of the decedent’s image, the statute makes no distinction between before-death and after-death uses.[217]

Like their statutory counterparts, common law postmortem rights also neglect the line between life and death. The musician Prince died unexpectedly in 2016, setting off a scramble to determine the status of rights to his image under Minnesota law.[218] A federal court, following the path of other states, concluded that Minnesota would indeed recognize a postmortem publicity right that could be enforced by Prince’s estate. [219] But it gave no other instructions for identifying the contours of this after-death property right, leading to the assumption that it should be no different from the same publicity rights Prince could exercise while living.[220] Other courts asked to adjudicate posthumous rights in their jurisdictions adopt the same analysis: they identify publicity rights as “property,” confirm that property rights are descendible, then conclude there is no need to distinguish between pre-mortem and postmortem protections.[221]

The exceptions to complete descendibility—when the intent of the decedent to extinguish their rights is clear or descendibility would produce suboptimal allocations of assets—are largely absent from these judicial reviews and statutory schemes. Rightsholders wishing their publicity rights to expire upon death have trouble executing their preferences.[222] Right of publicity jurisprudence pays little attention to whether limits on descendibility would provide more desirable social outcomes.[223] Part IV details the doctrinal reforms needed to correct these omissions, whether through revisions to current publicity laws or the enactment of a new right to be left dead.

IV. Blueprint for a Right to Be Left Dead

Digital reanimation is increasingly attracting the attention of lawmakers and the general public.[224] Motivated parties are lobbying Congress and state legislatures to pass specific rules regulating digital reanimation.[225] At the same time, litigation will inevitably arise to assess the equities of AI uses of deceased personas, potentially altering the current patchwork of state publicity rights laws.[226] This Part offers a template, based on property law rules for descendibility, to guide judges and legislators in constructing a right to be left dead. Implementing specific rules for testamentary instructions, duration, and prior exploitation will provide policy benefits while bringing the nascent regulation of digital reanimation into greater alignment with the law of property descendibility.

A.     Respecting Postmortem Wishes

Property law takes pains to facilitate the decedent’s testamentary wishes, including the destruction of a property right. Yet the decedent’s interests are frequently neglected in the context of publicity rights after death. Defining the legal contours of a right to be left dead would allow people to provide direction for how and whether to be reanimated. Defining a legal right to be left dead requires new legal means for recognizing decedents’ wishes in two areas: (1) controlling the use of raw materials that can be deployed to construct reanimations and (2) providing means for extinguishing the reanimation property interest.

1.     Controlling Use of Raw Materials

Although current law is well suited to protect grieving families from intentionally hurtful or callous reanimations,[227] it fails to give decedents sufficient authority over the underlying data that could facilitate reanimations. The law must account for who gets control over the raw materials that enable reanimations, like a chatbot articulating the sentiments of a fallen loved one or a hologram of a departed singer.

Access to decedents’ social media accounts has received the most public attention of the various concerns with control over reanimation materials. Surviving spouses, children, and others have understandably pushed for access after being locked out of the accounts of their loved ones.[228] But we should also worry about after-death access that is too permissive, even to families, from the decedent’s perspective. Tech titans have a business plan for bringing back the dead as substitutes for the original.[229] Grief chatbots, for example, might be therapeutic for some of those left behind, but without a say in how their words might be repurposed (even by family), users might stop sharing online because they are nervous about their statements becoming some sort of unforeseen and permanent digital tombstone.[230]

Admittedly, some platforms provide tools for postmortem management that allow users to restrict use of their online past after they are gone. Google permits users to set preferences such that their data is automatically deleted upon death.[231] Instagram, Snapchat, and other social media platforms will delete an account after the user’s death, though proof like a death certificate is required to show that the person making the request is the deceased’s lawful representative.[232] Consumer directions via these tools—including designation of a fiduciary to manage an account after death—must be respected under the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), a model statute passed in all but a handful of states. [233] RUFADAA treats these online assets (uploaded family photos, years of posts in a personal Facebook account, etc.) as the user’s personal property that can be managed after death through instructions supplied by the decedent to the online intermediary.[234]

Nevertheless, it remains too easy in online environments to channel users into the platforms’ desired directions.[235] RUFADAA does not specify any criteria for platforms’ online mechanisms for decedent control. Instead, the model law broadly defines “online tool” as “an electronic service provided by a custodian that allows the user, in an agreement distinct from the terms-of-service agreement between the custodian and user, to provide directions for disclosure or nondisclosure of digital assets to a third person.”[236] This vague definition leaves platforms free to determine what after-death options will be available in their online tools and to make those online tools as straightforward or as hard to use as they want. There is nothing requiring platforms to maintain particular options for departed users’ online effects, including their permanent deletion.[237] Instead, posthumous terms of service can change on a dime.[238] It’s little wonder that Facebook and Google endorsed RUFADAA when it gives them such control.[239]

Constructing a right to be left dead should include amending RUFADAA to require platforms to make it easier for users to decide that their digital records should not be shared with anyone, including the platform or even their families, after they die. Legislators can mandate an option for social media users to request complete postmortem deletion of their accounts and require that this option be presented in easy-to-follow terms. Amazon and Microsoft may be excited about the possibility of using someone’s online renderings to construct digital grief assistants, but a person should be able to decline such exploitation of their persona after death. Just as we allow authors to burn unpublished manuscripts and Supreme Court justices to destroy their papers, a person should be able to erase their DMs and text messages when they face their final hour.

2.     Extinguishing Rights in Reanimation

While some people may wish to prevent all commercial uses of their personas, others may prefer to abandon all rights to their digital legacies. For example, rather than preserving their reanimation property right after death, someone might want to extinguish their right and allow their persona to enter the public domain. As noted earlier, property law’s default rules cause rights to pass automatically to successors in interest, but when the owner intended that those rights be extinguished, they vanish instead of being inherited by anyone.[240] For example, choosing to take valuable items of property to your grave can mean that those items are no longer anyone’s property; no one is forcing other members of the British royal family to pay taxes on the valuable jewelry Queen Elizabeth was buried in.[241] Currently, publicity rights law is out of step with this basic tenet of property law. Publicity law does little to facilitate decedents’ wishes to extinguish rights, instead presuming commercial exploitation after death and that the decedent would never want to forfeit their property right.[242]

Though it may seem far-fetched that someone would fail to maximize, let alone want to destroy, a potentially valuable economic right like control over reanimation, consider some examples from the related field of copyright law. Acclaimed artists have sought to abandon their rights to thousands of photographs and songs.[243] Software developers have tried to donate their works to the public domain.[244] Others have destroyed property interests to shield heirs from tax consequences. Destruction of a property right can also serve the decedent’s own expressive purposes. Someone wishing to renounce their publicity rights after death might want to express their sentiment that their work while alive should be considered the sum total of their oeuvre, that their heirs should make their own way in the world instead of profiting from past performances, or simply that a rich reservoir of material—including the decedent’s public persona—should be freely available for constructing new creative content.

The ability to abandon rights can have value not only to the rightsholder but also to society at large. Speaking in the context of copyright law, David Fagundes and Aaron Perzanowski write, “[A]bandoning a work generates utility for the thousands or even millions of people who can now freely access and use it.”[245] When publicity rights enter the public domain, they facilitate the work of subsequent artists and performers who might otherwise worry about being blocked from rendering updated takes on past personalities.

Unfortunately, there is no established avenue for abandoning one’s postmortem rights in persona. This is even more problematic when you realize that these rights spring into being automatically, whether you want them or not.[246] As effortlessly as one can acquire publicity rights, they are nearly impossible to shake before you head to your great reward. Compare this with someone desiring to extinguish their rights in physical property upon death, in which case the path—burning or burying select property or delegating this task to a trusted associate—is fairly straightforward.

Clever estate planning is not the answer to this conundrum. Even the savviest of celebrities can run into difficulty orchestrating how their publicity rights should be wielded after death. Comedian Robin Williams, who died by suicide in 2014,[247] attempted to deploy trusts and estates law to prevent postmortem exploitation of his image and, presumably, to avoid tax consequences for his heirs.[248] He transferred his publicity rights to a trust with instructions to prevent commercial use of his name, voice, signature, photograph, or likeness for twenty-five years beyond his death.[249] He also arranged for the rights to transfer after the twenty-five years to a charitable foundation he created.[250] Experts say, however, that Williams’s maneuvers will not shield his family from a hefty tax bill or necessarily prevent exploitation of his image given the charity’s fiduciary obligations.[251] Williams was trying to use trusts and estates law to prevent commercial exploitation of his image after death, rather than to completely abandon his publicity property right. However, his story still illustrates the failure of publicity rights law to facilitate the wishes of decedents when it comes to future use of this particular property interest. This failure is all the more glaring when compared with other property law rules that do facilitate such wishes.[252]

So what’s the solution? In their study of copyright abandonment, Fagundes and Perzanowski note that before legislative reforms in 1976, a set of formalities necessary to copyright protection actually facilitated abandonment.[253] All an author who wanted to relinquish their copyright had to do was fail to comply with one of these formalities; the result was automatic transfer of the author’s work to the public domain.[254] For example, in this earlier time, works had to be published with notice in order to obtain copyright protection.[255] To affect abandonment, someone who wanted to disclaim their copyright could simply omit notice upon publication of their work.[256] Now that such formalities are no longer required for copyright protection, however, authors face an uncertain legal landscape with no clear path detailing how to abandon their rights.[257] The current Copyright Act makes no mention of abandonment whatsoever, and even the U.S. Copyright Office is unclear as to what entails abandonment.[258] Fagundes and Perzanowski recommend that Congress revise the Copyright Act to at least clarify that abandonment is possible.[259]

Along similar lines, as a first step, any legislative body detailing a right to be left dead should signal that this right can indeed be abandoned. Some states that recognize postmortem publicity rights require filing with a public state registry before those rights can be exercised.[260] Ideally, such a registry could also record acts of abandonment so that downstream users can recognize which personas are free for reanimation and which are not.

Another important reform would introduce some sort of a formality requirement to preserve postmortem rights against digital reanimation. One option would be to require payment of a minimal annual administrative fee. A successor aware of the decedent’s wish to abandon their rights could elect not to pay the fee.[261] This would arm heirs with a simple mechanism for taking the decedent’s posthumous interests out of legal limbo and instantiating their wishes for treatment of their property interest.

B.     A Twenty-Year Term

Any theory of the publicity rights owner’s entitlement is also a theory of the public domain, and this theorizing includes how long publicity rights should last.[262] The typical assumption is that property rights should be placed in the hands of family members or other designees of the decedent and that, so long as they retain value, the property interests can continue forever. But when this paradigm produces deleterious results—from body parts to taxi medallions to spousal inheritances—full descendibility is reconsidered.

Lawmakers should set a twenty-year limit on postmortem reanimation rights. As explained below, twenty years is the length of a single generation,[263] which makes it an appropriate cut-off point for a property right in reanimated performances. Twenty years is enough time to incentivize heirs to collect and curate the digital artifacts of fallen loved ones and to allow ongoing creative projects disrupted by a celebrity performer’s death to be finalized via AI. A longer, multigenerational term would be counterproductive as it would encourage recirculation of the same persona in the same form for decades, instead of making space for new performances. After two decades, digital personas would become part of the public domain.[264]

1.     Why Not a Longer Term?

Performances on stage and screen form critical parts of our shared culture. To assess how laws regulating postmortem performances impact this culture, it is important to consider how culture evolves. For cultural critic W. David Marx, generational change is the essential ingredient in preventing cultural stasis.[265] Marx traces the recurring paradigm of new generations asserting their own status and authenticity by contrasting their preferred aesthetic with the generation before.[266] According to Marx, this process “encourages the invention of new aesthetic sensibilities, and acts as an automated motor for permanent cultural change.”[267]

In other words, the differences in tastes, attitudes, and interests between generations supply the friction necessary for great art. The baby boomers rebelled against the WWII generation, and millennials and Gen Z reacted against the boomers; each generation’s rebellion spawned new approaches to music, literature, visual art, and other forms of cultural expression. Just think of the differences in cultural production in the 1950s (car tail fins, rock ‘n’ roll, “greaser” dress) and the 1980s (boxy car design, heavy metal, “preppie” dress). Or consider how pop artists made art in reaction to their predecessors, the abstract expressionists.[268] When this generational friction is disrupted, rather than promote aesthetic evolution, people seek status and differentiation in less socially beneficial ways—like attaining raw wealth—and cultural production suffers.[269]

Marx’s theory of cultural production has bearing on how to design our right to be left dead. A lengthy property right in postmortem reanimations could endanger the natural cycle of generational change by centralizing control over a celebrity’s expressive content long into the future. Rightsholders and their successors tend to authorize uses that are congruent with the personality’s past performances and public image while alive and tend to avoid postmortem productions that challenge the past.[270] Actors have attempted to mobilize the right of publicity to stop new portrayals of themselves that they find offensive.[271] A long line of academic commentary criticizes publicity rights for endangering cultural pluralism.[272] This criticism has even more force if a right to be left dead can be used to stop a new generation from subverting the older celebrity messaging and performance styles of the previous generation.[273]

In addition, the particular medium of AI reanimations seems to favor the tried-and-true over the avant-garde. A property right that encourages such reanimations by centralizing economic and expressive control in one party may have the effect of promoting uninventive clones of past performances. This is not to say that every AI invocation of the dead lacks creativity. There can certainly be “transformative”—a legal term of art—applications of technology that feature personal images in new contexts or generate new insights about a performer’s work than when they were alive.[274] But most digital appropriations of the dead seem designed not to communicate a message but simply to entertain by giving us more of what we are already watching or listening to.

As television critic James Poniewozik noted, AI is excellent at generating scripted shows that replicate the kinds of shows we are already used to, like police procedurals and reboots of existing franchises.[275] All those Law and Order episodes represent a rich vein to mine, and providing more of the same to audiences will likely be a successful gambit. What AI cannot do (at this point) is launch something bold and different. This is a problem for cultural innovation, particularly in a climate where digital surveillance and algorithmic delivery threaten to reify existing tastes. “A culture that is fed entirely by regurgitating existing ideas is a stagnant one,” Poniewozik warned.[276] “The logical conclusion of an algorithmicized, ‘more like what you just watched’ entertainment industry is a popular culture that just . . . stops.”[277]

This concern with AI’s uncreative ratification of current preferences has been levied against the use of chatbots for script writing, but it also applies with equal force to the issue at hand: digital reanimations. In fact, the problem is only compounded when past performances are the raw material being utilized by AI. This is another reason why it makes sense to limit the term of a right to be left dead to no more than a generation. While they may be technical marvels, there is nothing new about the avatar-led performances that have channeled the spirits of Tupac Shakur, Amy Winehouse, or Whitney Houston, apart from the sanitizing of some controversial lyrics. The same goes for the cinematic revivifications of Peter Cushing, Carrie Fisher, and Christopher Reeve. Instead, these performances are the product of plugging in an array of visual and vocal data to generate an output that matches the original person as closely as possible.[278] Rather than creativity, AI invocation of the dead tends toward outright mimicry—not the kind of creative output that needs to be encouraged with a multigenerational term of protection.[279]

Yet most states that have selected a term for rights of publicity have chosen durations of more than fifty years beyond death.[280] To be sure, such postmortem terms are finite, but they go far beyond what would be necessary for any articulated policy goal.[281] They last much longer than a single generation and certainly bear no reasonable relationship to fostering cultural innovation. A steady diet of personalities from the past dims cultural innovation, and this problem is even worse under the influence of AI, which facilitates not mere borrowing from a person’s look, cadence, or affect but its exact replication.[282] By confining the right to be left dead to the length of a generation, lawmakers could help transformative art supplant stage and screen retreads that merely mimic what has come before.[283]

2.     Why Not a Shorter Term or No Term at All?

Given the discussion thus far, some readers might ask why a right to be left dead needs to exist at all. Part of my motivation here is to create a set of best practices for a legal movement to enact postmortem reanimation rights that is gaining momentum, whether that movement is sensible or not.[284] But there are also compelling reasons to create a short-term property interest against unauthorized reanimation. Such an interest prevents a potentially wasteful rush to commercialize immediately after a celebrity death and provides an important incentive for collecting and organizing materials left behind by the decedent. It also safeguards the creative activities of filmmakers, television studios, and others who may be taken by surprise by a performer’s untimely death.

A limited postmortem term prevents a reanimation free-for-all when someone dies. Without a specified timeframe for maintenance of centralized ownership, there could be a rush to commercialize still-popular personas the moment news of a fatal celebrity overdose or car crash hits TMZ.[285] Not only might these efforts be wastefully duplicative, but the spectacle of so many digital recreations pressed into service immediately after death could harm surviving family in a way that existing privacy torts would not address. From a creative standpoint, a property right that forces creators, like biopic filmmakers, to consult with a celebrity’s estate can sometimes result in a better product.[286]

A short-term postmortem right also promotes socially beneficial collection and consolidation of the different personal communications the decedent generates during their life. Whereas heirs have often not been trustworthy stewards of multigenerational intellectual property rights,[287] they are likely to serve a valuable preservationist role in the immediate aftermath of a loved one’s passing. Eva Subotnik has written about the importance of after-death copyright protections as a prompt for “the processing of many unpublished works that are left behind.”[288] Drafts, sketchbooks, models, home movies, and correspondence can have great artistic significance yet might be dumped in the trash but for a descendible copyright providing the financial incentive for their careful cataloging and preservation.[289]

An inheritable right to prevent postmortem reanimations limited to a single generation could stimulate a similar preservationist impulse. Some heirs may already be motivated for non-commercial reasons to collect various recordings, images, and statements to preserve the decedent’s memory, particularly with the new option of a reanimated version of their loved one. But others may need the financial incentive of monetizing rights in their relative’s image and voice. Although some representations of the decedent may already be publicly available, others may be barricaded behind passwords on online platforms. RUFADAA offers some ability for heirs—if so designated by the decedent—to obtain digital information held by outside entities, but a postmortem right provides an economic motive for collecting and consolidating this information before it is forgotten. There will also be recordings of the decedent residing on outdated smartphones, tablets, cameras, home computers, and other devices. Such artifacts can degrade and become more difficult to preserve and restore over time if they are not transferred to more modern formats.[290] Successors in interest may also seek out recordings of the decedent held by others, including the decedent’s contemporaries who may be facing their own deaths in the near future. Postmortem rights give heirs reason to collect and organize these scraps of identity while there is still time to construct as exact a replica of the decedent as possible.

This short-term economic incentive may pay long-term dividends. Historians in the future will be able to ask chatbots and avatars for information about a decedent’s (actual) life. Teachers may be able to push a button and transmit a walking, talking image of a key figure for their students’ appreciation instead of directing them to a dry text. These valuable future uses could be lost if heirs or other successors in interest are uninterested in post-death housekeeping. And before you presume that the only figures likely to wield a right against digital reanimation are vapid celebrities of fleeting historical significance, a look at the client list of the largest celebrity-rights management agency reveals political and cultural icons like Amelia Earhart, Harvey Milk, Thelonious Monk, Rosa Parks, Mark Twain, Oscar Wilde, and Malcolm X.[291] A short-term right to be left dead encourages the preservation of the digital records of tomorrow’s artistic and historical giants.

Finally, a limited postmortem term facilitates the completion of creative works that have been interrupted by an untimely death. Numerous actors have died in the middle of filming or in between planned stages of a multi-feature arc. After Paul Walker died before the completion of Furious 7, a visual effects company was brought in to finish his performance. As the Fast & Furious series has raced on, it has continued to render Walker in CGI, and there is even speculation about how filmmakers will use AI to give Walker’s character “a proper send-off” as the franchise speeds to a conclusion.[292] To date, the Fast & Furious series has made over $7 billion during its two-decade-long run at the box office.[293] Given the money wrapped up in particular characters and storylines, studios may prefer centralized control in the decedent’s estate for a limited period rather than the alternative: rights in persona suddenly held by no one and the potential for an avalanche of digital reanimations all at once.[294]

C.    Prior Exploitation

Finally, for our right to be left dead, lawmakers should require the decedent to have commercially exploited their persona during their lifetime. Otherwise, the persona should enter the public domain at death and become freely available for others to use. This is another logical restriction on descendibility to prevent suboptimal allocations of the property interest. Although a lifetime exploitation requirement to invoke the right might offend the desires of some decedents, this disadvantage would be outweighed by the cultural and technological benefits of making commercially unused personas part of the public domain.

A prior exploitation requirement would bring the right to be left dead into alignment with other intellectual property protections. Most common law and statutory manifestations of the right of publicity do not require prior exploitation to assert the right.[295] But other intellectual property regimes do. Trademark rights demand continuous use in commerce and are forfeited by nonuse.[296] U.S. patent rights necessitate a “reduction to practice,”[297] even if that does not involve actual commercial entry into the marketplace, and many other countries require actual sales or licensing for patent protection.[298] These rules make intuitive sense in that they reserve the rewards of intellectual property rights for only those creative activities shared with the public. “It is difficult to see how society can benefit unless IP is used, perhaps even used publicly.”[299]

A major benefit of a prior exploitation requirement lies in preventing lawsuits invoking the right to be left dead that have little to do with promoting creative cultural production. Plaintiffs have had some success in leveraging publicity rights to protest the unauthorized use of their biometric information by new technologies.[300] These technologies sometimes utilize public websites and other online platforms, scraping the personal data of millions to develop databases that can be sold to both private and public actors.[301] Arguably, it makes sense to use the right of publicity to restrain such unauthorized uses of personal information, but only for the living. This is because the security risks and privacy harms from such uses only apply when one is alive. As with other concerns, they fade away upon death.

Some may embrace it, but others may feel a visceral distaste at the thought of their personal data being used without permission after they are gone. Still, American law reasons that such concerns over postmortem dignity or autonomy typically must yield to the interests of the living.[302] If these sorts of concerns are motivating publicity rights lawsuits brought by successors in interest to the dead, we should question whether those lawsuits should be recognized.[303] To be clear, a prior exploitation requirement would only impact a property right in postmortem reanimations, not the entire universe of legal regulations surrounding the dead and their surviving family members. Even for those who never commercially exploited their personas while alive, there are existing particularized legal protections, separate and apart from the publicity property interest, that restrict certain unauthorized uses of biometric information after death.[304]

The biggest advantage of a prior exploitation requirement for a postmortem property right in reanimations may be that it carves out essential space for AI research. There is a long tradition of using the dead to advance scientific and historical understanding. Since the time of the ancient Greeks, dead bodies have been a key component of medical research and training.[305] Medical schools today rely on both donated and unclaimed bodies to train future health professionals.[306] Cadavers provide critical evidence of how diseases affect the body––research made even more valuable thanks to the rise of molecular tissue analysis in the 1990s.[307] Medical research involving the dead does not just take place using their bodies. Data in medical records of the deceased is frequently used in ethically approved medical and epidemiological research projects.[308]

Beyond physical health, death often serves as the demarcation point for release of personal materials to facilitate new cultural production and understanding. It can trigger disclosure of papers, correspondence, and other unpublished writings. Authors from Shel Silverstein to Franz Kafka have had works released after their passings to great acclaim.[309] At their discretion, Supreme Court justices typically make public their personal papers sometime after they or their colleagues on the bench have died. For example, under the terms of Justice Rehnquist’s gift of his papers to Stanford University, the papers will be released after the death of all the justices who served with him.[310] The same is true of Justice Scalia’s papers, which are housed at Harvard University.[311] Justice Souter’s papers will become available in 2059, fifty years after his retirement.[312] Other former justices have released their papers sooner but, in most cases, still chose death as the determinative event in their release or at least made sure to keep their papers private until they died.[313]

A prior exploitation requirement comports with this tradition of death being the event that releases personal property claims to promote new public understandings. Lawmakers should construct any new rights against posthumous reanimation with an eye to safeguarding this tradition of using the dead as a scientific and cultural resource. One can envision real value in using the faces and voices of the dead for AI training and other research. By limiting use of a right to be left dead to those situations where the dead exploited their personas while alive, valuable repurposings of publicly available digital information can continue without the threat of aggregate lawsuits or payment of debilitating permissions fees.[314]

Of course, a prior exploitation requirement clashes with the wishes of those who want to avoid any commercial use of their personas both before and after death. It is not clear, however, that such wishes should prevent imposition of a prior exploitation requirement. Concerns over artistic integrity should have much less purchase on our right than they would while the rightsholder was alive. Even if successors in interest maintain that the decedent would have objected to postmortem uses as out of keeping with their sense of their own artistry or their stance on commercialism, this objection sounds in the sort of injury that is typically recognized during life, but not after death.

More broadly, one much warranted criticism of current right of publicity laws is that they promote commercialism and fail to respect an individual’s choice not to exploit their fame for commercial advantage.[315] A prior exploitation requirement might be viewed as part of the problem, unnecessarily spurring well-known individuals to use their identities in advertising and endorsements. But such a condition for postmortem rights is unlikely to prompt the living to commercialize their identities just so their heirs can enjoy a right after death to prevent unauthorized commercial exploitations. To the extent one is offended by commercialization of one’s image, it seems logical to think that the offense is felt more strongly for commercial acts taking place while one is alive. After all, postmortem reanimations can no longer embarrass us and, although they may deprive heirs of a windfall, they do not take any money out of our own pockets. As a result, it is hard to believe that a prior exploitation requirement would somehow encourage commercial uses of personas in life by those who wished to avoid them in death.[316]

It is also important to reiterate that even when the prior exploitation requirement has not been satisfied and no property interest can be invoked to prevent reanimation, outside parties still need to comply with other laws. Posthumous reanimators must continue to heed legal protections against confusing commercial uses of the dead.[317] Unauthorized but not confusing reanimations are less likely to affect the audience’s view of the decedent, thereby easing any dignitary concerns. Similarly, if mining old photos or other personal information of the dead somehow results in the identification of living relatives, constitutional and statutory restrictions on the use of biometric data may come into play.[318] A prior exploitation requirement helpfully limits the scope of a property interest against postmortem AI reanimation, but other laws exist to potentially vindicate separate legal concerns.

Conclusion

As courts and legislators grapple with the perils and promise of artificial intelligence, they will confront uses that bring the dead into greater contact with the living. The dead deserve our respect and possess some legal rights, but those rights are, and should remain, limited. Regulation of digital reanimation needs to be calibrated to reflect this longstanding legal line between life and death.

To that end, this Article recommends legal rules targeted to the particular problem of reanimated performances packaged as new entertainment. A limited right in such performances—with provisions for voluntary abandonment, a minimal term of protection, and a prior exploitation requirement—comports with the larger law of property descendibility while promoting artistic innovation and technological advance.

Copyright © 2024 Mark Bartholomew, Professor, University at Buffalo School of Law. Thanks to Luis Chiesa, Bryan Choi, Deven Desai, Mark McKenna, Jack Schlegel, Lauren Henry Scholz, Rebecca Tushnet, Jim Wooten, Fred Yen, participants at the Third Annual Legal Scholars Roundtable on Artificial Intelligence at Emory Law School, 2023 Intellectual Property Scholars Conference, University at Buffalo’s 2023 Law Review Camp, and Andrew Chin’s 2024 AI and the Law seminar at the University of North Carolina School of Law for their helpful suggestions. Ariyana DeWitz and Andrew Kennedy provided useful research assistance. I reserve my greatest appreciation for Martin Skladany, who not only is responsible for this Article’s title, but engaged in several helpful conversations with me about the proper interface between digital reanimation and publicity rights.

           [1].     Andrew Gilden, Endorsing After Death, 63 Wm. & Mary L. Rev. 1531, 1534 (2022).

           [2].     Josh Marcus, Artists Decry Use of AI-Generated Art, The Independent (Dec. 10, 2022), https://www.sfchronicle.com/projects/2021/jessica-simulation-artificial-intelligence/ [https://perma.cc/ME3N-4P87].

           [3].     Jason Fagone, The Jessica Simulation: Love and Loss in the Age of A.I., S.F. Chronicle (July 23, 2021), https://www.sfchronicle.com/projects/2021/jessica-simulation-artificial-intelligence/ [https://perma.cc/A4T8-AQWF].

           [4].     Mark Binelli, Old Musicians Never Die. They Just Become Holograms, N.Y. Times Mag. (Jan. 7, 2020), https://www.nytimes.com/2020/01/07/magazine/hologram-musicians.html [https://perma.cc/L8BJ-XUUD].

           [5].     George Wald, Therefore Choose Life: The Found Massey Lectures 44 (2017).

           [6].     See Benjamin E. Bratman, Brandeis & Warren’s The Right to Privacy and the Birth of the Right to Privacy, 69 Tenn. L. Rev. 623, 629–30 (2002).

           [7].     Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890).

           [8].     Eric W. Orts & Amy Sepinwall, Privacy and Organizational Persons, 99 Minn. L. Rev. 2275, 2284–85 n.27 (2015); see generally William L. Prosser, Privacy, 48 Calif. L. Rev. 383 (1960) (detailing the foundation and fundamental principles of American privacy torts).

           [9].     Warren & Brandeis, supra note 7, at 213–14; see also Roberson v. Rochester Folding Box Co., 64 N.E. 442, 450 (N.Y. 1902) (Gray, J., dissenting) (“[A] plaintiff has the same property in the right to be protected against the use of her face for defendant’s commercial purposes as she would have if they were publishing her literary compositions.”).

         [10].     Olmstead v. United States, 277 U.S. 438, 478 (Brandeis, J., dissenting).

         [11].     Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 121 (2011) (“The areas of law most directly concerned with reputation—defamation and privacy—strictly adhere to the position that a person has no interest in his or her reputation after death.”).

         [12].     Id. at 125.

         [13].     Gugliuzza v. K.C.M.C., Inc., 606 So. 2d 790, 791 (La. 1992).

         [14].     N.Y. Civ. Rights Law §§ 50-f(1)(a), 50-f(1)(c). The 2020 law actually creates two separate postmortem rights: the one described above for “deceased performers” and a different, broader protection for “deceased personalities.” N.Y. Civ. Rights Law §§ 50-f(1)(a) (defining “deceased performer”), 50-f(1)(b) (defining “deceased personality”).

         [15].     Id.

         [16].     La. Rev. Stat. § 51:470.4.

         [17].     La. Rev. Stat. § 51:470.3.

         [18].     La. Rev. Stat. §§ 51:470.2, 51:470.4.

         [19].     Katie Townsend, Raising the Dead: Understanding Post-Mortem Rights of Publicity, Documentary (Feb. 4, 2022), https://www.documentary.org/column/raising-dead-understanding-post-mortem-rights-publicity.gmail [https://perma.cc/9V9A-RHBP].

         [20].     Patrick Hicks, What Is RUFADAA – Everything You Need to Know, trust & will https://trustandwill.com/learn/what-is-rufadaa [https://perma.cc/RE75-B57W] (last visited Jan. 18, 2024)

         [21].     In a hearing held by the Senate Subcommittee on Intellectual Property, the chair, Senator Chris Coons, opened the hearing with a new, AI-created version of “New York, New York” in Frank Sinatra’s voice, volunteered that he had secured permission for the use from Sinatra’s heirs, and speculated that enactment of a “federal right of publicity” might be needed. Artificial Intelligence and Intellectual Property – Part II: Copyright and Artificial Intelligence Before the Subcomm. on Intellectual Property of the S. Committee on the Judiciary, 118th Cong. 1–2 (2023) (statement of Christopher A. Coons, U.S. Senator, Delaware).

         [22].     Technically, death determines duration under either law, but it does not otherwise change their application.

         [23].     Kanye West Gives Kim Kardashian Birthday Hologram of Dead Father, BBC (Oct. 30, 2020), https://www.bbc.com/news/entertainment-arts-54731382 [https://perma.cc/3VNV-ALZC]. Even though the hologram told Kim K. that she married “the most, most, most, most, most genius man in the whole world,” this fatherly advice was not enough to stop her from filing for divorce just four months later.

         [24].     Matthew Dunne-Miles, Deepfakes, Dead Relatives and Digital Resurrection, The Face (Apr. 6, 2021), https://theface.com/society/deepfakes-dead-relatives-deep-nostalgia-ai-digital-resurrection-kim-kardashian-rob-kardashian-grief-privacy [https://perma.cc/J6W2-AE5B].

         [25].     See Malerie G. McDowell & Jason Haberman, The Frozen Effect: Objects in Motion Are More Aesthetically Appealing Than Objects Frozen in Time, Plos One (May 16, 2019), https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0215813 [https://perma.cc/LJ99-3AGW]; Selen Turkay, The Effects of Whiteboard Animations on Retention and Subjective Experiences When Learning Advanced Physics Topics, 98 Computs. & Educ. 102, 111–13 (2016).

         [26].     See Ezra Klein, This Changes Everything, N.Y. Times (Mar. 12, 2023), https://www.nytimes.com/2023/03/12/opinion/chatbots-artificial-intelligence-future-weirdness.html [https://perma.cc/DRR3-CBJ7] (questioning why AI developers continue their work when they estimate that it will cause human extinction); Kevin Roose, A Conversation with Bing’s Chatbot Left Me Deeply Unsettled, N.Y. Times (Feb. 17, 2023), https://www.nytimes.com/2023/02/16/technology/bing-chatbot-microsoft-chatgpt.html [https://perma.cc/37HR-VZSP] (describing how among other things, the chatbot declared its love for the author and seemingly tried to break up his marriage).

        [27].  Fagone, supra note 3; Max Zahn, Artificial Intelligence Advances Fuel Industry Trying to Preserve Loved Ones After Death, ABCNews (July 21, 2023), https://abcnews.go.com/Business/ai-advances-fuel-industry-preserve-loved-after-death/story?id=101297956 [https://perma.cc/27YV-FSWE].

         [28].     Id.

         [29].     Brad Stone, Yoda, Harry Potter Chatbots Could Be the Next Big Legal Battle, Bloomberg Law (Mar. 20, 2023), https://news.bloomberglaw.com/ip-law/yoda-harry-potter-chatbots-could-be-the-next-big-legal-battle [https://perma.cc/S4BQ-JBLH].

         [30].     U.S. Patent No. 10,853,717 B2 (filed Apr. 11, 2017) (issued Dec. 1, 2020); Leslie Katz, Microsoft Patent Details Tech That Could Turn Dead People into AI Chatbots, CNET (Jan. 22, 2021), https://www.cnet.com/science/microsoft-patent-details-tech-that-could-turn-dead-people-into-ai-chatbots/ [https://perma.cc/K6KC-VSM9].

         [31].     Alex Hern, Amazon’s Alexa Could Turn Dead Loved Ones’ Voices into Digital Assistant, Guardian (June 23, 2022), https://www.theguardian.com/technology/2022/jun/23/amazon-alexa-could-turn-dead-loved-ones-digital-assistant [https://perma.cc/AT56-FJS5].

         [32].     Anita Elberse & Jeroen Verleun, The Economic Value of Celebrity Endorsements, 52 J. Advertising Res. 149, 149–65 (2012) (noting positive impacts of celebrity endorsements on sales and stock returns); Robin J. Tanner & Ahreum Maeng, A Tiger and a President: Imperceptible Celebrity Facial Cues Influence Trust and Preference, 39 J. Cons. Res. 769, 778–79 (2012) (finding that celebrity images in advertising positively influence trustworthiness ratings even without conscious awareness); Natalie Wood & Feng Shen, Looks Matter: Facial Similarity Between a Candidate and Celebrity Endorser Influences Youth Voting Behavior, 15 J. Cons. Behav. 221, 233 (2016) (finding that political candidates are rated more positively when endorsed by a facially similar celebrity).

         [33].     Daniel Kreps, Surprise! Your Favorite Chris Brown Song Is a Gum Ad, Rolling Stone (July 28, 2008), https://www.rollingstone.com/music/music-news/surprise-your-favorite-chris-brown-

song-is-a-gumad179494/#:~:text=It%27s%20rare%20that%20a%20commercial,jingle%20for%20

Wrigley%27s%20Doublemint%20gum [https://perma.cc/S6GP-U87R].

         [34].     Id.; Daniel Kreps, Chris Brown Officially Out as Wrigley Gum Pitchman, Rolling Stone (Aug. 7, 2009), https://www.rollingstone.com/music/music-news/chris-brown-officially-out-as-wrigley-gum-pitchman-73382/ [https://perma.cc/G29R-NKS3].

         [35].     Matt Adams, Kyrie Irving’s Partnership with Nike Is Officially Terminated, NPR (Dec. 5, 2022), https://www.npr.org/2022/12/05/1140830753/kyrie-irving-nike-contract-terminated [https://perma.cc/4VCC-2MKK]; Ken Belson & Mary Pilon, Armstrong Is Dropped by Nike and Steps Down as Foundation Chairman, N.Y. Times (Oct. 17, 2012), https://www.nytimes.com/2012/10/18/sports/cycling/lance-armstrong-dropped-by-nike-steps-down-as-chairman-of-his-charity.html#:~:text=Armstrong's%20resignation%20from%20the%20foundation,Tour%20de%20France%2Dwinning%20teams. [https://perma.cc/YFN7-U3F3].

         [36].     Gilden, supra note 1, at 1542–44.

         [37].     Denver D’Rozario & Frank K. Bryant, The Use of Dead Celebrity Images in Advertising and Marketing—Review, Ethical Recommendations and Cautions for Practitioners, 5 Int’l J. Mktg. Studs. 6 (2013) (comparing a $30 million deal between Gillette and David Beckham with the $15,000–$20,000 it cost to license James Dean’s image for one year).

         [38].     See Denver D’Rozario & Guang Yang, The History and Evolution of the Market for ‘Delebs’ (Dead Celebrities), 8 Atlantic Mktg. J. 1, 26 (2019) (tracing the first use of a dead celebrity in a television commercial to 1981).

         [39].     See Tiffany Hsu & Yiwen Lu, A Blessing and a Boogeyman: Advertisers Warily Embrace A.I., N.Y. Times (July 18, 2023), https://www.nytimes.com/2023/07/18/business/media/ai-advertising.html [https://perma.cc/4F5P-B733] (describing use of AI to create customized video invitations for a cruise line led by a digital avatar of Jennifer Lopez); Heather Tal Murphy, Actors Are Already Selling Digital Clones of Themselves for $500. Are Stars Next?, Slate (June 4, 2023), https://slate.com/technology/2023/06/screen-actors-guild-artificial-intelligence-strike-digital-doubles.html [https://perma.cc/EUH8-5QX8] (describing ads using an “A.I.-generated digital mask” to make body doubles appear to be soccer stars Kylian Mbappé and Lionel Messi).

         [40].     Andrew Hornery, Tweet of the Dead: The Celebrities Who Keep Posting from Beyond the Grave, Sydney Morning Herald (Jan. 16, 2022), https://www.smh.com.au/culture/celebrity/tweet-of-the-dead-the-celebrities-who-keep-posting-from-beyond-the-grave-20220111-p59nci.html [https://perma.cc/LPM7-MNDQ].

         [41].     Matt Novak, 15 Dead Celebrities Elon Musk Has Branded with Twitter’s Controversial Checkmark, Forbes (Apr. 22, 2023), https://www.forbes.com/sites/mattnovak/2023/04/22/15-dead-celebrities-elon-musk-has-branded-with-twitters-controversial-checkmark/?sh=6aba39a5abe8 [https://perma.cc/62J5-VYAK].

         [42].     Michael Jackson, Instagram (Jan. 4, 2022), https://www.instagram.com/p/CYUNY7HtqKL/?img_index=1 [https://perma.cc/QAZ5-9MQX].

         [43].     Amy Winehouse (@amywinehouse), X (June 7, 2022, 7:41 AM), https://twitter.com/amywinehouse/status/1534138414211256320 [https://perma.cc/8LMT-GUC9].

         [44].     Joan Rivers (@Joan_Rivers), X (July 17, 2021, 9:35 AM), https://twitter.com/Joan_Rivers/status/1416391162852696065 [https://perma.cc/P7BL-MJ9Y].

         [45].     Muhammad Ali (@Muhammad Ali), X (June 10, 2020, 2:01 PM), https://twitter.com/MuhammadAli/status/1270778024305311752?lang=en. [https://perma.cc/7N9W-YLPR].

         [46].     Bettie Page (@BettiePage), X (Nov. 1, 2021, 7:28 PM), https://twitter.com/BettiePage/status/1455315717931225089 [https://perma.cc/C8WP-AG6G]; Bettie Page (@BettiePage), X (Mar. 8, 2020, 4:43 PM), https://twitter.com/BettiePage/status/1236754451509248001 [https://perma.cc/KSQ3-86V2].

         [47].     Freddie Mercury (@Freddie_Mercury), X (Oct. 19, 2021, 6:00 AM), https://twitter.com/freddie_mercury/status/1450401341881425924?lang=en. [https://perma.cc/UTT9-KQ7M].

         [48].     See Gilden, supra note 1, at 1574–76.

         [49].     Hornery, supra note 40.

         [50].     Travis M. Andrews, Whatever Happened to the Almighty Q Score?, Wash. Post (Oct. 7, 2022), https://www.washingtonpost.com/arts-entertainment/2022/10/07/q-score-what-is-it/ [https://perma.cc/T8F3-YRKY].

         [51].     Elvis on ‘Idol:’ How It Was Done, ABC News (Jan. 7, 2009), https://abcnews.go.com/GMA/story?id=3087711 [https://perma.cc/86ZV-H963].

         [52].     Melissa Ruggieri, Whitney Houston Died 10 Years Ago, But Her Legacy and Voice Live on in Vegas Hologram Show, USA Today (Feb. 11, 2022), https://www.usatoday.com/story/entertainment/music/2022/02/11/whitney-houston-died-10-year-ago-las-vegas-hologram-show-captures-legacy/6669768001/ [https://perma.cc/BF7A-2CQT].

         [53].     Binelli, supra note 4.

         [54].     Tanya Basu, I Just Watched Biggie Smalls Perform ‘Live’ in the Metaverse, MIT Tech. Rev. (Dec. 16, 2022), https://www.technologyreview.com/2022/12/16/1065393/biggie-smalls-metaverse/ [https://perma.cc/XY2F-MMUE].

         [55].     Carolyn Giardina, How “Furious 7” Brought the Late Paul Walker Back to Life, Hollywood Rep. (Dec. 11, 2015), https://www.hollywoodreporter.com/movies/movie-news/how-furious-7-brought-late-845763/ [https://perma.cc/4RUK-HXE8]; Alex Lee, The Messy Legal Scrap to Bring Celebrities Back From the Dead, Wired (Nov. 19, 2019), https://www.wired.com/story/james-dean-dead-actors-rights/#:~:text=Last%20week%2C%20independent%20production%20company,and%20existing%20footage%20and%20photos [https://perma.cc/F5BZ-LM8Y].

         [56].     Dave McNary, James Dean Will Be Digitally Resurrected for Vietnam War Movie, Variety (Nov. 6, 2019), https://variety.com/2019/film/news/james-dean-movie-digitally-restored-cgi-1203395176/ [https://perma.cc/KCY4-LE7G].

         [57].     Helen Rosner, The Ethics of a Deepfake Anthony Bourdain Voice, New Yorker (July 17, 2021), https://www.newyorker.com/culture/annals-of-gastronomy/the-ethics-of-a-deepfake-anthony-bourdain-voice [https://perma.cc/QCK4-DLAK].

         [58].     See Caitlin Huston & Abbey White, At New York Actors Strike Picket Lines, Artificial Intelligence and Residuals are Top of Mind, Hollywood Rep. (July 14, 2023), https://www.hollywoodreporter.com/business/business-news/actors-strike-new-york-sag-aftra-ai-residuals-1235536773/ [https://perma.cc/YMT7-9N74]. The actors’ union has also been instrumental in lobbying for new state protections against the practice. See Jennifer E. Rothman, The Right of Publicity: Privacy Reimagined for New York?, 36 Cardozo Arts & Ent. L.J. 573, 575–76, 598 (2018).

         [59].     See Jacob Oller, The IP Era’s Venture Capital Philosophy Has Poisoned Movies, Paste (May 10, 2023), https://www.pastemagazine.com/movies/intellectual-property/ip-era-franchises-venture-capital-filmmaking [https://perma.cc/Q53Z-2W2N]; Sarah Vizard, The Pros and Cons of Using Dead Celebrities in Marketing Campaigns, Marketing Wk. (Jan. 6, 2015), https://www.marketingweek.com/the-pros-and-cons-of-using-dead-celebrities-in-marketing-campaigns/ [https://perma.cc/JB3J-9F94].

         [60].     See Tamara Kneese, How Data Can Create Full-On Apparitions of the Dead, Slate (Nov. 2, 2020), https://slate.com/technology/2020/11/robert-kardashian-joaquin-oliver-deepfakes-death.html [https://perma.cc/V6WW-KRDF].

         [61].     Jack Guy, Tom Hanks says AI Could See Him Featuring in Movies Long After his Death, CNN (May 16, 2023), https://www.cnn.com/2023/05/16/entertainment/tom-hanks-ai-movies-scli-intl/index.html [https://perma.cc/48R8-CT7V].

         [62].     See Sharareh Drury, Chris Evans, Elijah Wood and More Criticize James Dean CGI Casting: “This Shouldn’t Be a Thing,” Hollywood Rep. (Nov. 6, 2019), https://www.hollywoodreporter.com/news/general-news/chris-evans-elijah-wood-more-criticize-james-dean-cgi-casting-shouldnt-be-a-thing-1253004/# [https://perma.cc/Y68Q-W6WV].

         [63].     See Daniel Kelly, Yuck!: The Nature and Moral Significance of Disgust 54 (2011).

         [64].     Dignitary torts are notoriously underspecified, but they are generally meant to protect and compensate victims for harms apart from bodily injury and damage to property. Kenneth S. Abraham & G. Edward White, The Puzzle of the Dignitary Torts, 104 Cornell L. Rev. 317, 319 (2019); see also id. at 320 (describing dignitary torts as “the notion that some tort actions are available when a person has been offended, embarrassed, ridiculed, or misportrayed by the words or actions of another in a way that does not respect that person’s intrinsic worth”).

         [65].     See Eva Subotnik, Artistic Control After Death, 92 Wash. L. Rev. 253, 278 (2017) (discussing how “dead-hand control provides a valuable means of self-expression”).

         [66].     See, e.g., Hendrickson v. Cal. Newspapers, Inc., 48 Cal. App. 3d 59, 62 (1975) (concluding that common law right of privacy “does not survive but dies with the person”); Hopson v. Kimbrell, No. 4:11-CV-608-DPM, 2013 WL 3187313, at *1 (E.D. Ark. June 20, 2013) (stating that “actions to recover for dignitary injuries—slander, libel, and malicious prosecution, for example—do not survive”).

         [67].     See Fred O. Smith, Jr., The Constitution After Death, 120 Colum. L. Rev. 1471, 1491–1505 (2020).

         [68].     Fred O. Smith, Jr., On Time, (In)equality, and Death, 120 Mich. L. Rev. 195, 202 (2021) (“In . . . American law, any specific individual’s memory and dignitary interests tend to diminish over time”). For a book-length argument that American law should take the dead’s continuing dignitary interests more seriously, see generally Don Herzog, Defaming the Dead (2017).

         [69].     See Rich v. Fox News Networks, 939 F.3d 112, 125 (2d Cir. 2019).

         [70].     Letter from Thomas Jefferson to Major John Cartwright (June 5, 1824), in Thomas Jefferson: Writings 1490, 1493 (Merrill D. Peterson ed., 1984) (“Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will.”).

         [71].     See Clay Calvert, Salvaging Privacy & Tranquility from the Wreckage: Images of Death, Emotions of Distress & Remedies of Tort in the Age of the Internet, 2010 Mich. St. L. Rev. 311, 323–26 (describing the use of newsworthy images of death by the press).

         [72].     Take, for example, the millions left by hotel heiress Leona Helmsley to provide for her dog while her grandchildren were either cut out or ordered to visit their father’s grave annually to inherit their shares. A judge subsequently trimmed the dog’s inheritance. Felicity Hannah, 10 of the Strangest Wills of All Time, Guardian (Aug. 25, 2015), https://www.theguardian.com/money/2015/aug/25/10-strangest-wills-finances-death [https://perma.cc/6XCA-BCN8].

         [73].     See, e.g., Calvert, supra note 71, at 314–18 (discussing a California appellate court ruling that found liability for releasing headless pictures of the victim of a gruesome car crash).

         [74].     Catsouras v. Dep’t of Cal. Highway Patrol, 181 Cal. App. 4th 856, 863–64 (2010); see also Mineer v. Williams, 82 F. Supp. 2d 702, 704, 707 (E.D. Ky. 2000) (refusing to recognize false light or IIED claims against national talk show host for false accusations of murder because claims survived accused’s death).

         [75].     R.I. Gen. Laws § 10-7.1-1.

         [76].     See generally Claire Dederer, Monsters: A Fan’s Dilemma (2023) (interrogating when audiences should alter their appreciation of creative works when confronted with new information about the works’ authors).

         [77].     See Jennifer Hassan, AI Is Being Used to Give Dead, Missing Kids a Voice They Didn’t Ask For, Wash. Post (Aug. 9, 2023), https://www.washingtonpost.com/technology/2023/08/09/ai-dead-children-tiktok-videos/ [https://perma.cc/4HQP-U9WW]; Leo Kim, Deepfakes Can Help Families Mourn—Or Exploit Their Grief, Wired (Mar. 14, 2022), https://www.wired.com/story/deepfake-death-grief-hologram-photography-film/ [https://perma.cc/J6W2-AE5B].

         [78].     Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 168 (2004).

         [79].     Jonathan Abrams, Vanessa Bryant Is Suing L.A. County Over Kobe Bryant Crash Photos: What to Know, N.Y. Times (Feb. 28, 2023), https://www.nytimes.com/article/kobe-vanessa-bryant-lawsuit.html [https://perma.cc/HNW3-VJVN]. The parties settled for nearly $29 million. Ashley Cullins, Vanessa Bryant Reaches $29M Settlement in Suit Over Kobe Bryant Crash Photos, Hollywood Rep. (Mar. 1, 2023), https://www.hollywoodreporter.com/news/general-news/vanessa-bryant-settles-suit-over-kobe-bryant-crash-photos-1235338676/ [https://perma.cc/5PPH-DMZF].

         [80].     W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keaton on Torts § 12 at 63 (5th ed. 1984) (listing “a great many cases involving the mishandling of dead bodies, whether by mutilation, disinterment, interference with proper burial or other forms of intentional disturbance” and characterizing them as IIED claims sometimes clothed in the garb of a property right).

         [81].     Andrew Gilden contends, for example, that such non-economic familial interests often motivate intellectual property litigation over a departed artist’s work and deserve more attention in that area of the law than they currently receive. See Andrew Gilden, IP, R.I.P., 95 Wash. U. L. Rev. 639, 656 (2017) (describing “at least five categories of narratives that IP heirs repeatedly invoke” that are non-economic in nature).

         [82].     See Robert C. Post & Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, 130 Yale L.J. 86, 95 (2020).

         [83].     See, e.g., Calvert, supra note 71, at 320–28 (discussing application of the torts to publication of death scene images); Smith, supra note 68, at 208 (listing various activities involving the dead that have sustained intentional infliction of emotional distress claims).

         [84].     See, e.g., Holloway v. Oxygen Media, LLC, 361 F. Supp.3d 1213, 1225 (N.D. Ala. 2019) (holding that a media company could be responsible for informing a mother that bones belonged to her eighteen-year-old daughter when the company knew the bones likely belonged to an animal). In addition, federal law extends special protection against undignified disturbance to Native American burial grounds. 28 U.S.C. §§ 3001–13. On the other hand, the First Amendment prevents speech made in a public place on a matter of public concern during a funeral from providing the basis for liability for an emotional distress tort. See Snyder v. Phelps, 562 U.S. 443, 460 (2011).

      [85].   W. Page Keeton, Prosser & Keeton on the Law of Torts 61–63 (5th ed. 1984).

         [86].     Savala v. Freedom Comms., Inc., No. 04–VCU210710, 2006 WL 1738169, at *8 (Cal. Ct. App. 2006).

         [87].     A deepfake can be defined as “a specific kind of synthetic media where a person in an image or video is swapped with another person’s likeness.” Meredith Summers, Deepfakes, Explained, MIT Sloan (July 21, 2020), https://mitsloan.mit.edu/ideas-made-to-matter/deepfakes-explained [https://perma.cc/9H2F-TDNX]. Other definitions of deepfake capture the use of AI to alter a person’s likeness to make that same person appear in places they never were or say things they never said. See Rebecca A. Delfino, Deepfakes on Trial: A Call to Expand the Trial Judge’s Gatekeeping Role to Protect Legal Proceedings from Technological Fakery, 74 Hastings L.J. 293, 298 (2023).

         [88].     Will Bedingfield, The Bruce Willis Deepfake Is Everyone’s Problem, Wired (Oct. 17, 2022), https://www.wired.com/story/bruce-willis-deepfake-rights-law/ [https://perma.cc/7E2X-8MGT].

         [89].     Patrick Coffee, ‘Deepfakes’ of Celebrities Have Begun Appearing in Ads, With or Without Their Permission, Wall St. J. (Oct. 25, 2022), https://www.wsj.com/articles/deepfakes-of-celebrities-have-begun-appearing-in-ads-with-or-without-their-permission-11666692003 [https://perma.cc/H8HJ-J3VE].

         [90].     Id.

         [91].    See infra Part I.B.

         [92].     Id.

         [93].     See infra Part II.A.

         [94].     See infra Part I.B.

         [95].     Joseph William Singer, The Rule of Reason in Property Law, 46 U.C. Davis L. Rev. 1369, 1424 (2013) (describing consumer protection laws as those that “define minimum standards for market relationships and thus ensure that bargaining takes place within an institutional framework that accords with our justified expectations”).

         [96].     15 U.S.C. § 1125(a)(1)(B); see, e.g., Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1106 (9th Cir. 1992) (recognizing theory of “false endorsement” under Lanham Act for imitating famous singer’s voice in commercial).

         [97].     E.g., Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1073 (9th Cir. 2015) (“Thus, the fact of the celebrity’s death does not preclude a [federal false endorsement] claim.”).

         [98].     Id. (quoting Cairns v. Franklin Mint Co., 292 F.3d 1139, 1149 (9th Cir. 2002)).

         [99].     Courts deem confusion rates as low as 11 percent as satisfying the “appreciable” percentage requirement. See 4 J. Thomas McCarthy, 4 McCarthy on Trademarks and Unfair Competition § 23:2 (5th ed. 2022).

      [100].     Cairns v. Franklin Mint Co., 24 F. Supp. 2d 1013, 1032 (C.D. Cal. 1998).

      [101].     See Fifty-Six Hope Rd. Music, 778 F.3d at 1066 (Bob Marley); Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1018 (3d Cir. 2008) (John Facenda); A.V.E.L.A., Inc. v. Estate of Marilyn Monroe, LLC, 364 F. Supp. 3d 291, 308 (S.D.N.Y. 2019) (Marilyn Monroe); Bruce Lee Enterprises, LCC v. A.V.E.L.A., No. 10-CV-2333, 2013 WL 822173, at *3 (S.D.N.Y. Mar. 6, 2013) (Bruce Lee); Cheever v. Acad. Chi., Ltd., 690 F. Supp. 281, 288 (S.D.N.Y. 1988) (John Cheever); Presley’s Estate v. Russen, 513 F. Supp. 1339, 1375–76 (D.N.J. 1981) (Elvis Presley); Hicks v. Casablanca Records, 464 F. Supp. 426, 433 (S.D.N.Y. 1978) (Agatha Christie).

      [102].     Federal trademark law typically requires only some sort of commercial interest for standing. See Parks v. LaFace Records, 329 F.3d 437, 445 (6th Cir. 2003) (“Celebrities have standing to sue under § 43(a) because they possess an economic interest in their identities akin to that of a traditional trademark holder.”). Though easily satisfied by celebrities, this requirement may be difficult to establish for average citizens without some degree of public notoriety. Post & Rothman, supra note 82, at 111.

      [103].     See Skydive Ariz., Inc. v. Quattrocchi, 673 F.3d 1105, 1110 (9th Cir. 2012) (listing elements of federal false advertising claim).

      [104].     Rebecca Tushnet, Running the Gamut from A to B: Federal Trademark and False Advertising Law, 159 U. Pa. L. Rev. 1305, 1344 (2011).

      [105].     See Cairns, 24 F. Supp. 2d at 1022.

      [106].     Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 137­–40 (2014).

      [107].     See id. at 133–34.

      [108].     See Gilden, supra note 1, at 1550–54.

      [109].     Of course, consumers may be less likely to be fooled by a commercial representation invoking a celebrity if the celebrity has been dead for a long time. Presidents George Washington and Abraham Lincoln feature heavily in February auto advertising, but no one is likely to believe they or their heirs are affiliated with the advertisers. Still, the question of consumer beliefs is something to be litigated and, unlike with dignitary interests, death does not automatically preclude a lawsuit. Successors in interest for long-gone celebrities like Bob Marley and Marilyn Monroe have still successfully marshalled federal consumer protection law against unauthorized retailers. See supra note 101.

      [110].     See Adam J. Hirsch, Incomplete Wills, 111 Mich. L. Rev. 1423, 1424 (2013) (“One way or another, everything previously owned by a deceased person is going to pass into someone else’s hands.”).

      [111].     Note, however, that the law distinguishes between restrictions on market alienability and restrictions on descendibility. See David Horton, Indescendibility, 102 Calif. L. Rev. 543, 546 (2014).

      [112].     See Hodel v. Irving, 481 U.S. 704, 716 (1987).

      [113].     See Smith, Jr., supra note 67, at 1515–17 (discussing how “[t]he law honors certain personal directives after death, giving people some degree of control over their property and their memory”).

      [114].     Lior Jacob Strahilevitz, The Right to Destroy, 114 Yale L.J. 781, 800-21 (2005).

      [115].     See id. at 800.

      [116].     Id. at 803–04.

      [117].     Kirsten Rabe Smolensky, Rights of the Dead, 37 Hofstra L. Rev. 763, 784 (2009).

      [118].     See Strahilevitz, supra note 114, at 813–14. In response to the Watergate scandal, Congress enacted the Presidential Records Act, abolishing private ownership of presidential papers. See 44 U.S.C. §§ 2201–2207. The Act became a point of contention in the criminal charges against former President Donald Trump, particularly around what role and responsibility it implies for former presidents’ caretaking of documents from their time in office. See Charlie Savage & Adam Feuer, Trump’s ‘Muddled’ Claims About the Presidential Records Act, Explained, N.Y. Times (Sept. 14, 2022), https://www.nytimes.com/2022/09/14/us/politics/trump-presidential-records-act.html [https://perma.cc/5NSZ-6L7P].

       [119].  Strahilevitz, supra note 114, at 813.

      [120].     Id.

      [121].     Jill Lepore, The Great Paper Caper, New Yorker (Nov. 24, 2014),  https://www.newyorker.com/magazine/2014/12/01/great-paper-caper [https://perma.cc/9VFH-W6G8].

      [122].     See Eric Goldman & Jessica Silbey, Copyright’s Memory Hole, 2019 BYU L. Rev. 929, 978.

      [123].     Thomas E. Simmons, A Will for Willa Cather, 83 Mo. L. Rev. 641, 642 (2018).

      [124].     Subotnik, supra note 65, at 282, 299.

      [125].     See id. at 280–81.

      [126].     There is a tension between respecting the testator’s wishes and policing inheritance for suboptimal allocations. Sometimes a testator desiring the destruction of valuable property upon death may have their wish denied as contrary to public policy. See Strahilevitz, supra note 114, at 796.

       [127].  Horton, supra note 111, at 551.

      [128].     Id.

      [129].     U.S. Const., art. I, § 9, cl. 8.

      [130].     Horton, supra note 111, at 551.

      [131].     Georgia is the only state without a law providing a forced share for spouses or community property rules. Jeffrey N. Pennell, Individuated Determination of a Surviving Spouse’s Elective Share, 53 U.C. Davis L. Rev. 2473, 2479 (2020).

      [132].     Mark Glover, A Social Welfare Theory of Inheritance Regulation, 2018 Utah L. Rev. 411, 412–13 (2018).

      [133].     Id. at 426­–29.

      [134].     Another example of a paternalist stance against unfettered descendibility rules comes from copyright law. Copyright law awards authors the right to terminate certain transfers of their copyright interest after a period of time when they may be in a better position to renegotiate the terms of their initial bargain. The operative statute reserves these rights to terminate and reclaim rights in a copyrighted work to a statutorily prescribed line of succession, favoring family members over handpicked successors in a way akin to the forced spousal share rules. See 17 U.S.C. §§ 203, 304(c)-(d).

      [135].     Post & Rothman, supra note 82, at 89.

      [136].     See Warren & Brandeis, supra note 7, at 198, 206; see also Irwin R. Kramer, The Birth of Privacy Law: A Century Since Warren and Brandeis, 39 Cath. U. L. Rev. 703, 711 (1990) (“Because common law copyright protection did not depend upon the value of the work, or even upon the particular medium in which the author’s thoughts were expressed, Warren and Brandeis questioned whether this protection truly constituted a tangible property right.”).

      [137].     Robert C. Post, Rereading Warren and Brandeis: Privacy, Property, and Appropriation, 41 Case W. Res L. Rev. 647, 648 (1990) (“In fact the central thrust of Warren and Brandeis’s article on ‘the right to privacy’ is to disentangle privacy from property, and the subsequent influence of the piece rests in great measure upon its success in that effort.”).

      [138].     Warren & Brandeis, supra note 7, at 200–01.

      [139].     Id. at 200–01, 205.

      [140].     For a compelling argument that Brandeis and Warren mischaracterized the ability to recognize privacy interests in copyright law and property law more broadly, see Shyamkrishna Balganesh, Privative Copyright, 73 Vand L. Rev. 1, 28–33 (2020).

      [141].     Restatement of Torts § 867 (1939).

      [142].     See, e.g., James v. Screen Gems, Inc., 344 P.2d 799, 801 (Cal. Ct. App. 1959); see also, e.g., Foster-Milburn Co. v. Chinn, 120 S.W. 364, 366 (Ky. 1909) (holding that “a person is entitled to the right of privacy as to his picture”).

      [143].     Pavesich v. New England Life Ins. Co., 50 S.E. 68, 71, 80 (Ga. 1905).

      [144].     See supra notes 136–137.

      [145].     There is some dispute in the scholarship about the timing of this shift and the historical origins of the right of publicity. See Jennifer E. Rothman, The Right of Publicity: Privacy Reimagined for a Public World 67 (2018); Dustin Marlan, Unmasking the Right of Publicity, 71 Hastings L.J. 419, 434–35 (2020). Rothman argues that the evolution of the right of publicity was motivated by private dignitary interests as much as economic ones. See Rothman, supra, at 58. We need not settle that dispute here. Regardless of the origin story of the right of publicity, in its modern incarnation, it is most frequently characterized as a property right meant to serve as an economic incentive for creative activities. See infra Part III.A.1.

      [146].     See Melville B. Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203 (1954).

      [147].     Id. at 203.

      [148].     Id. at 204.

      [149].     See J. Thomas McCarthy, Melville B. Nimmer and the Right of Publicity: A Tribute, 34 UCLA L. Rev. 1703, 1704 (1987) (“In a seminal 1954 article, Nimmer laid the intellectual foundation for the right of publicity, and all subsequent case law and commentary has built upon this foundation.”).

      [150].     Grant v. Esquire, 367 F. Supp. 876, 880 (S.D.N.Y. 1973).

      [151].     Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 573 (1977).

      [152].     State ex rel. Presley v. Crowell, 733 S.W.2d 89, 97 (Tenn. Ct. App. 1987).

      [153].     According to some, this property interest in one’s persona is engineered to prompt people to invest in personal enrichment and activities that would benefit the public and capture its attention. E.g., Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994) (“Protecting one’s name or likeness from misappropriation is socially beneficial because it encourages people to develop special skills, which then can be used for commercial advantage.”).

      [154].     Melissa B. Jacoby & Diane Leenheer Zimmerman, Foreclosing on Fame: Exploring the Uncharted Boundaries of the Right of Publicity, 77 N.Y.U. L. Rev. 1322, 1358 (2002) (“[P]ublicity rights have never been completely severed from their roots in privacy.”).

      [155].     Some jurisdictions offer a tort of appropriation for personal privacy interests and a separate right of publicity for economic interests, but even in these jurisdictions, the elements of the causes of action are frequently identical. See, e.g., Doe v. TCI Cablevision, 110 S.W.3d 363, 368 (Mo. 2003).

      [156].     Baugh v. CBS, Inc., 828 F. Supp. 745, 753 (N.D. Cal. 1993); Dora v. Frontline Video, Inc., 18 Cal. Rptr. 2d 790, 792 (Ct. App. 1993).

      [157].     Bullard v. MRA Holding, LLC, 740 S.E.2d 622, 625 (Ga. 2013); see also Toffoloni v. LFP Publ’g Grp., LLC, 572 F.3d 1201, 1205-07 (11th Cir. 2009) (merging discussion of privacy and publicity rights in action brought by mother of decedent against Hustler magazine for publication of nude photos).

      [158].     Mark P. McKenna, The Right of Publicity and Autonomous Self-Definition, 67 U. Pitt. L. Rev. 225, 225 (2005).

      [159].     Roberta Rosenthal Kwall, Preserving Personality and Reputational Interests of Constructed Personas Through Moral Rights: A Blueprint for the Twenty-First Century, 2001 U. Ill. L. Rev. 151, 158–59.

      [160].     Rothman, supra note 145, at 111–12.

      [161].     Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994); State ex rel. Presley v. Crowell, 733 S.W.2d 89, 99 (Tenn. Ct. App. 1987).

      [162].     Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan. L. Rev. 1161, 1164–66 (2006); Douglas Baird, Note, Human Cannonballs and the First Amendment: Zacchini v. Scripps-Howard Broadcasting Co., 30 Stan. L. Rev. 1185, 1186 n.7 (1978); see also Eric E. Johnson, Disentangling the Right of Publicity, 111 Nw. U. L. Rev. 891, 938–39 (2017) (collecting cases supporting the consumer protection rationale).

      [163].     See Lauren Henry Scholz, Privacy as Quasi-Property, 101 Iowa L. Rev. 1113, 1121 n.43 (2016).

      [164].     Ky. Rev. Stat. Ann. § 391.170.

      [165].     Tex. Prop. Code Ann.§ 26.002.

      [166].     Ind. Code § 32-36-1-16.

      [167].     1 J. Thomas McCarthy & Roger E. Schechter, The Rights of Publicity and Privacy § 6:105 (2d ed. 2023).

      [168].     N.Y. Civ. Rights Law § 50-f.

      [169].     La. Rev. Stat. § 51:470.3.

      [170].     Mark Bartholomew, A Right Is Born: Celebrity, Property, and Postmodern Lawmaking, 44 Conn. L. Rev. 301, 317–19 (2011) (charting shift in case law to describing the right as a property right); Sharon L. Klein & Jenna M. Cohn, The Post-Mortem Right of Publicity: Defining It, Valuing It, Defending It and Planning for It, 48 ACTEC L.J. 63, 71 (2022) (“Even in the absence of a state statute that explicitly accords a post-mortem ROP, most courts have agreed that the ROP survives death and is enforceable by a decedent’s estate.”).

      [171].     Memphis Dev. Found. v. Factors Etc., Inc., 616 F.2d 956, 959–60 (6th Cir. 1980).

      [172].     Id. at 958.

      [173].     Id. at 959.

      [174].     Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 325–26 (6th Cir. 2000).

      [175].     Id.

      [176].     In re Estate of Reynolds, 327 P.3d 213, 216 (Ariz. Ct. App. 2014); see also Paisley Park Enters., Inc. v. Boxill, 299 F. Supp. 3d 1074, 1083 (D. Minn. 2017) (approving language and analysis from Reynolds); C.B.C. Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077, 1090 (E.D. Mo. 2006) (“The right to publicity protects pecuniary, not emotional, interests.”).

      [177].     Many commentators have written about the problems with incentives theory and the right of publicity. See, e.g., Rothman, supra note 145, at 101 (“If the right of publicity incentivizes anything, it is not clear that it is incentivizing anything that we might wish to encourage.”); Mark Bartholomew, The Political Economy of Celebrity Rights, 38 Whittier L. Rev. 1, 4 (2018) (“The incentives story of the right of publicity is unconvincing.”).

      [178].     See Stephanie Plamondon Bair & Laura Pedraza-Farina, The Sociology and Psychology of Innovation: A Synthesis and Research Agenda for Intellectual Property Scholars, 60 Hous. L. Rev. 261, 264 (2022) (discussing attempts to use sociology to identify non-pecuniary reasons why people engage in particular types of innovative activity).

      [179].     Daniel Gervais & Martin L. Holmes, Fame, Property, and Identity: The Scope and Purpose of the Right of Publicity, 25 Fordham Intell. Prop. Media & Ent. L.J. 181, 218 (2014); Richard A. Posner, The Right of Privacy, 12 Ga. L. Rev. 393, 411 (1978).

      [180].     Rothman, supra note 145, at 103–05; McKenna, supra note 158, at 270.

      [181].     Id. at 76–81 (crediting the Supreme Court’s 1977 Zacchini decision with “shift[ing] the right of publicity to a strong property-based framework”).

      [182].     1 McCarthy & Schechter, supra note 167, at § 2.1.

      [183].     See John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2007 Utah L. Rev. 537, 547–48.

      [184].     See Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 538 (2005); Christopher Serkin, What Property Does, 75 Vand. L. Rev. 891, 893–95 (2022).

      [185].     Steven Semeraro, Property’s End: Why Competition Policy Should Limit the Right of Publicity, 43 Conn. L. Rev. 753, 772–74 (2011).

      [186].     Cf. United States v. Drew. 259 F.R.D. 449, 452 (C.D. Cal. 2009) (federal indictment for IIED against a woman who created a fictitious social media profile that flirted with the victim then told her that “the world would be a better place without her in it,” leading to her suicide).

      [187].     Keeton et al. supra note 80, § 12 at 62 (conduct undertaken with the knowledge that a person is in a vulnerable state can be the basis for a finding of “extreme outrage”).

      [188].     Some might object to the entire concept of grief chatbots as infringing on decedents’ privacy, even though their use by loved ones would not rise to the level of “outrageousness.” Part IV addresses this concern by suggesting legal reforms that would make it easier for users of online platforms to determine whether or not their digital records become the raw material for such chatbots. See infra Part IV.A.1.

      [189].     New York’s “deceased performer” law seems to be partially grounded in a consumer protection rationale, as it only applies “if the use is likely to deceive the public into thinking it was authorized.” N.Y. Civ. Rights Law § 50-f(2)(b).

      [190].     See Tiffany Hu, How Celebrities Can Use IP Law to Go After Deepfake Ads, Law360 (Oct. 27, 2022), https://www.law360.com/articles/1544318/how-celebrities-can-use-ip-law-to-go-after-deepfake-ads [https://perma.cc/KC4X-NYZD].

      [191].     See, e.g., Danielle Keats Citron, Sexual Privacy, 128 Yale L.J. 1870, 1903-04, 1921 (chronicling online posting of deepfake sex videos and maintaining that sexual privacy interests should outweigh the poster’s interest in anonymity) (2019).

      [192].     Nicholas O’Donnell, Have We No Decency? Section 230 and the Liability of Social Media Companies for Deepfake Videos, 2021 Ill. L. Rev. 701, 712-13 (2021).

      [193].     Similarly, as Amazon and Microsoft enter the market for digital grief assistants, there should be little problem with hailing them into court for any misleading uses of dead personas.

      [194].     Along with trademark and false advertising protections, copyright law offers another potential avenue for stopping deepfakes of the dead. To the extent that a celebrity deepfake relies on copyrighted source material from prior films, photographs, or other appearances, the deepfake itself could be viewed as an unauthorized reproduction or derivative work of that source material. See Bobby Chesney & Danielle Keats Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Calif. L. Rev. 1753, 1793 (2019). The deepfake creator might try to claim fair use—in fact, the makers of the commercials described at the beginning of Part II.B did their best to showcase parodic elements to bolster such a claim—but deployment for a commercial purpose makes fair use less likely. See Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258, 1277 (2023).

      [195].     Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 973 (10th Cir. 1996) (“The Court’s incentive rationale is obviously more compelling in a right of performance case than in a more typical right of publicity case . . .”); Post & Rothman, supra note 82, at 108.

      [196].     Johnson, supra note 162, at 934–38 (collecting performance cases and characterizing them as motivated by an “unjust enrichment” rationale).

      [197].     See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 562 (1977).

      [198].     Id. at 564.

      [199].     Id. at 573. In addition, locating a right to be left dead in property offers more potential for critical tailoring than a dignitary tort. What exactly is an injury to a person’s dignity or autonomy after death? The legal system has kept its recognition of such injuries minimal, not only because there are reasons to believe such injuries are few and far between, but also from prudential concerns over creating an overly expansive right. As Mark Lemley maintains, there are many things that can count as affronts to dignity or autonomy that we do not believe should be legally prohibited. In an earlier era, he notes, when publicity protections were explicitly conceptualized not as property rights but as privacy rights, the legal system routinely allowed such protections to trample speech of public concern. Mark A. Lemley, Privacy, Property, and Publicity, 117 Mich. L. Rev. 1153, 1166 (2019). Reliance on vague dignitary concerns might give judges and juries more license to neglect a balanced approach and simply punish what they see as “free riding” off the work of the dead. Id. at 1169. Better then, perhaps, to borrow from the law of property rights to design a right to be left dead that can be adequately balanced against competing interests.

     [200].    17 U.S.C. § 106(1).

      [201].     SAG-AFTRA Statement on the Use of Artificial Intelligence and Digital Doubles in Media and Entertainment, SAGAFTRA (Mar. 17, 2023), https://www.sagaftra.org/sag-aftra-statement-use-artificial-intelligence-and-digital-doubles-media-and-entertainment [https://perma.cc/7RHQ-US3G].

      [202].     Hanna v. Ken’s Foods, Inc., No. 06-P-1071, 2007 WL 1695311, at *1 n.4 (Mass. App. Ct., June 12, 2007) (unpublished opinion) (noting that the trial court dismissed plaintiff’s complaint on the ground that plaintiff was not a living person).

      [203].     Massachusetts Senate Passes ‘Right of Publicity’ for the Dead, WBUR (June 13, 2014), https://www.wbur.org/radioboston/2014/06/13/dead-right-publicity [https://perma.cc/54Y2-3DEM].

      [204].     Heinz v. Frank Lloyd Wright Found., 229 U.S.P.Q. 201 (W.D. Wis. 1986).

      [205].     1 McCarthy & Schechter, supra note 167, at § 9:17.

      [206].     Va. Code Ann § 8.01-40.

      [207].     Pa. Ann. Stat. tit. 42 § 8316.

      [208].     Okla. Stat. tit. 12 §§ 1448-1449; Ind. Code § 32-36-1-8.

      [209].     Tenn. Code Ann. § 47-25-1103.

      [210].     N.Y. Civ. Rights Law § 50-f(8); La. Rev. Stat. §§ 51:470.3. For their part, courts assessing the appropriate length of common law (as opposed to statutory) publicity rights protections find themselves on uncertain ground. When a court had to divine an appropriate postmortem term under the common law of New Jersey, it picked the fifty-year term set (at the time the plaintiff acquired the relevant rights in persona) for copyright protection under the Copyright Act. Hebrew Univ. of Jerusalem v. Gen. Motors LLC, 903 F. Supp. 2d 932, 938 (C.D. Cal. 2012).

      [211].     Klein & Cohn, supra note 170, at 64 n.9. In most of these situations, courts recognized common law postmortem rights but were reluctant to determine the exact duration of those rights. In Nebraska, the legislature specifically enacted a postmortem right but failed to specify how long it lasts. Neb. Rev. Stat. § 20-208.

      [212].     See infra Part II.A.

      [213].     See infra Part II.C.2.

      [214].     See infra Part II.C.1.

      [215].     One other area of postmortem protection where states differ is the relevance of residency at time of death. For most states, the decedent needs to be domiciled at time of death in the relevant jurisdiction to trigger that jurisdiction’s publicity rights. A handful of enterprising states have broad statutory language that provides protection regardless of residency so long as the unauthorized exploitation of the persona occurred in the state. See, e.g., Haw. Rev. Stat. § 482P-2 (“This chapter is intended to apply to all individuals and personalities, living and deceased, regardless of place of domicile or place of domicile at time of death.”). Whether or not these broader statutes are constitutional under the Commerce Clause remains an open question. Klein & Cohn, supra note 170, at 64–65.

      [216].     Ark. Code Ann. § 4-75-1105.

      [217].     Id.

      [218].     Patrick Condon, Effort to Lock Down Publicity Rights for Prince Heirs Encounters Controversy at Capitol, Minneapolis Star-Tribune (May 18, 2016), https://www.startribune.com/effort-to-lock-down-publicity-rights-for-prince-heirs-encounters-controversy-at-capitol/379884991/ [https://perma.cc/B6MR-69QR].

      [219].   Paisley Park Enters., Inc. v. Boxill, 299 F. Supp. 3d 1074, 1084 (D. Minn. 2017).

      [220].     Id.

      [221].     See, e.g., Phyllis Schlafly Revocable Trust v. Cori, 512 F. Supp. 3d 916, 925–26 (E.D. Mo. 2021).

      [222].     Rothman, supra note 145, at 123–24.

      [223].     1 McCarthy & Schechter, supra note 167, at § 9:5 (criticizing judicial reliance on the “property” label to determine postmortem publicity rights: “The word ‘property’ is not a magic wand which substitutes for thought.”).

      [224].     In 2023, the television show Black Mirror devoted an entire episode to the legal and social problems of generating AI avatars of people against their will. Rebecca Ackermann, Black Mirror’s Big AI Episode Has the Wrong Villain, Vox (June 23, 2023), https://www.vox.com/culture/2023/6/23/23770239/black-mirror-joan-is-awful-review-ai-annie-murphy-salma-hayek [https://perma.cc/39JJ-VZQH].

      [225].     Elias Leight, Congressional Hearing on AI Deepfake Protections Raises Questions Over Ownership, Billboard (Feb. 2, 2024), https://www.billboard.com/business/tech/congress-artificial-intelligence-no-ai-fraud-act-hearing-1235596807/ [https://perma.cc/MBX9-5SU9].

      [226].     See Schuyler Moore, Who Owns Voice and Image Artificial Intelligence Rights?, Forbes (Oct. 28, 2022), https://www.forbes.com/sites/schuylermoore/2022/10/28/who-owns-voice-and-image-artificial-intelligence-rights/?sh=403ced9721fc [https://perma.cc/U3AG-J55L].

      [227].     See infra Part III.A.2.

      [228].     See, e.g., Fredrick Kunkle, Virginia Family, Seeking Clues to Son’s Suicide, Wants Easier Access to Facebook, Wash. Post, (Feb. 17, 2013), www.washingtonpost.com/local/va-politics/virginia-family-seeking-clues-to-sons-suicide-wants-easier-access-to-facebook/2013/02/17/e1fc728a-7935-11e2-82e8-61a46c2cde3d_story.html [https://perma.cc/X7CV-VMMR] (describing efforts of parents to change Virginia law after their son committed suicide and Facebook resisted granting them access to their son’s account).

    [229].   See infra Part I.A.

      [230].     Charlotte Jee, Technology That Lets Us “Speak” to Our Dead Relatives Has Arrived. Are We Ready?, MIT Tech. Rev. (Oct. 18, 2022), https://www.technologyreview.com/2022/10/18/1061320/digital-clones-of-dead-people/ [https://perma.cc/VMX4-MFP8]; Courtney Linder, After You Die, You Could Be Resurrected as a Chatbot. That’s a Problem., Popular Mechs. (Apr. 29, 2021), https://www.popularmechanics.com/technology/robots/a35165370/microsoft-resurrects-the-dead-chatbots/ [https://perma.cc/X662-DFGN].

      [231].     Katie Teague, Delete Your Google Account When You Die, CNET (June 26, 2019), https://www.cnet.com/tech/mobile/delete-your-google-account-when-you-die/ [https://perma.cc/7A3R-FBG5].

      [232].     WALRUS Staff, What Happens to Your Social Media Accounts After You Die, Walrus (June 4, 2021), https://thewalrus.ca/death-what-happens-to-your-social-media-accounts-after-you-die/ [https://perma.cc/YLV8-GJPF].

      [233].     Fiduciary Access to Digital Assets Act, Revised, Uniform L. Comm’n, https://www.uniformlaws.org/committees/community-home?CommunityKey=f7237fc4-74c2-4728-81c6-b39a91ecdf22 [https://perma.cc/DE98-K8GB] (last visited Jan. 20, 2024).

      [234].     See id. at § 7.

      [235].     See Jason Mazzone, Facebook’s Afterlife, 90 N.C. L. Rev. 1643, 1685 (2012) (“In the absence of legal regulation, social networking sites are not likely to adopt policies for handling the accounts of deceased users that significantly reflect the individual and collective interests at stake.”); Lauren E. Willis, When Nudges Fail: Slippery Defaults, 80 U. Chi. L. Rev. 1155, 1227 (2013) (contending that default “nudges” “provide political cover for policymakers who want to appear to protect consumers, without actually helping those who need the most help”); Lauren E. Willis, Why Not Privacy by Default?, 29 Berkeley Tech. L.J. 61, 130–31 (2014) (discussing how firms can alter commercial environments to cause consumers to opt-out of defaults meant to protect user privacy).

      [236].     RUFADAA § 2(16).

      [237].     If there is no use of the platform’s tools or express direction in a will, RUFADAA specifies that the platform’s terms of service take precedence, not the default rules of intestacy that govern other types of property. Natalie M. Banta, Electronic Wills and Digital Assets: Reassessing Formality in the Digital Age, 71 Baylor L. Rev. 547, 571 (2019). Given that two-thirds of Americans have no will or estate plan when they die, the digital assets of most departed social media users could be controlled by the platforms’ terms of service, which are not likely to be favorable to consumers. As one legal resource warns, “If left to the Terms of Service agreement, your family and loved ones could prematurely lose access to crucial information needed to settle your Estate.” Hicks, supra note 20.

      [238].     For example, in 2023, Elon Musk suddenly pronounced that Twitter would begin purging accounts that had been inactive for several years, but then, after an outcry from those interested in continuing to visit accounts of the dead, Musk said that these accounts would be “archived.” Wyatte Grantham-Philips, Twitter Is Purging Inactive Accounts Including People Who Have Died, Angering Those Still Grieving, AP News (May 17, 2023), https://apnews.com/article/twitter-elon-musk-dead-users-inactive-accounts-49c96ee9c0723a60c82da55f3616c96d [https://perma.cc/WH6L-G86Y]; Akash Sriram, Twitter to Remove Idle Accounts, Archive Them, Reuters (May 8, 2023), https://www.reuters.com/technology/twitter-remove-inactive-accounts-2023-05-08/ [https://perma.cc/3GFA-9XHD].

      [239].     Fiduciary Access to Digital Assets Act, Revised, supra note 233.

      [240].     See infra Part II.C.1.

      [241].     See Strahilevitz, supra note 114, at 831–34 (describing how destroying a property right can serve expressive purposes, like sending a public message or choosing to remain silent).

      [242].     Admittedly, the difficulties rightsholders can face in seeking to extinguish or limit their rights after death are not just a problem for the right of publicity. There are numerous examples of prolonged litigation over copyrights enforced by heirs in a fashion contrary to the intent of the original author. See Deven R. Desai, The Life and Death of Copyright, 2011 Wis. L. Rev. 219, 258–60. But the problem is arguably more pernicious in the publicity rights context. Most authors and artists have already made the choice to commercialize and make public their works. See 3 Boswell’s Life of Johnson 19 (G. Hill ed. 1934) (“No man but a blockhead ever wrote, except for money.”). It is the rare creator who wants no one to read their books, listen to their music, or see their art after they die. The same cannot be said about people, even public figures, when it comes to having their name or likeness used in advertising, commercial entertainment, or even as chatbots for grieving family. Instead, the publicity rightsholder may have strong personal objections to commercialization of their image or a desire to define their legacy solely through existing performances instead of allowing AI to supplement their body of work after death.

      [243].     Dave Fagundes & Aaron Perzanowski, Abandoning Copyright, 62 Wm. & Mary L. Rev. 487, 491 (2020) (noting that “[t]he desire among authors to part with their copyrights in order to enrich the public domain is not merely theoretical” and listing artists who have attempted to abandon their rights).

      [244].     Id.

      [245].     Fagundes & Perzanowski, supra note 243, at 509.

      [246].     See id. at 490 (making similar point regarding copyright).

      [247].     Nicole Perlroth, Robin Williams Died by Hanging, Official Says, N.Y. Times (Aug. 12, 2014), https://www.nytimes.com/2014/08/13/arts/williams-found-hanged-to-death-official-says.html [https://perma.cc/K5S8-P7V3].

      [248].     Klein & Cohn, supra note 170, at 69.

      [249].     Id.

      [250].     Id.

      [251].     Mitchell M. Gans, Publicity Rights and the Estate Tax, 42 Colum. J. L. & Arts 399, 400 (2019); Klein & Cohn, supra note 170, at 69.

      [252].     See infra Part I.C.1.

      [253].   Fagundes & Perzanowski, supra note 243, at 529.

      [254].     Id.

      [255].     Id.

      [256].     Id.

      [257].     Id. at 528–­29.

      [258].     Id. at 528–35.

      [259].     Id. at 554.

      [260].     See, e.g., Ark. Code Ann. §4-75-1106; Nev. Rev. Stat. Ann. 597.800; Tex. Prop. Code Ann. § 26.008(b); see also New York State, Department of State Division of Licensing Services, Right of Publicity Claim Registration, https://dos.ny.gov/system/files/documents/2021/05/2175-f.pdf [https://perma.cc/HUV2-YJD4] (providing instructions for registration for “[a]ny person claiming to be a successor in interest or a licensee thereof to the rights of a deceased personality”).

      [261].     Cf. William M. Landes & Richard A. Posner, Indefinitely Renewable Copyright, 70 U. Chi. L. Rev. 471, 517–18 (2003) (proposing a new regime of indefinitely renewable copyright where copyright holders would have to pay a fee to have their copyright renewed after the expiration of short, fixed terms).

      [262].     See Abraham Drassinower, Death in Copyright: Remarks on Duration, 99 B.U. L. Rev. 2559, 2561 (2019) (positing that, in copyright, “the theory of the author’s entitlement is simultaneously a theory of public domain,” which involves questions of duration).

      [263].     American Marketing Association, Generational Insights and the Speed of Change, Ama.org (June 30, 2022), https://www.ama.org/marketing-news/generational-insights-and-the-speed-of-change/ [https://perma.cc/KWG6-FRE9] (defining “generation” as “the average period, generally considered to be about 20-30 years, during which children are born and grow up, become adults and begin to have children”).

      [264].     I am only referring to a twenty-year limit for the property right being discussed. Even after that twenty-year period expires, a party engaging in commercial use of a persona could still potentially sue an unauthorized user for trademark infringement or unfair competition. See infra Part II.B.

     [265].  W. David Marx, Status and Culture: How Our Desire for Social Rank Creates Taste, Identity, Art, Fashion, and Constant Change xvii (2022).

      [266].     Id.

      [267].     Id.

      [268].     Shira Wolfe, Art Movement: Pop Art, Artland, https://magazine.artland.com/art-movement-pop-art/ [https://perma.cc/UG62-G838] (last visited Jan. 9, 2024) (quoting Andy Warhol: “The Pop artists did images that anybody walking down Broadway could recognize in a split second–comics, picnic tables, men’s trousers, celebrities, shower curtains, refrigerators, Coke bottles–all the great modern things that the Abstract Expressionists tried so hard not to notice at all.”).

      [269].     Marx, supra note 265, at 250.

      [270].     For example, while alive, Michael Jackson was prominently featured in commercials for Pepsi. After his death, his estate agreed to the use of images of him dancing for a new Pepsi commercial. Nobody’s Dead Anymore: Marketing Deceased Celebrities, CBC Radio (May 25, 2013), https://www.cbc.ca/radio/undertheinfluence/nobody-s-dead-anymore-br-marketing-deceased-celebrities-1.2801803 [https://perma.cc/AU9C-VXFQ].

      [271].     See, e.g., De Havilland v. FX Networks, LLC, 21 Cal. App. 4th 845, 859–61 (Cal. App. 2018) (rejecting famous actress’s right of publicity claim for unauthorized use of her persona in docudrama because use was protected under First Amendment); see also Paul Brownfield,  At 101, Olivia de Havilland Sued Hollywood—Again, N.Y. Times (Mar. 3, 2018), https://www.nytimes.com/2018/03/03/style/olivia-de-havilland-fx-ryan-murphy-lawsuit.html [https://perma.cc/GSU9-ZPR3] (actress described herself as “deeply offended” by portrayal in docudrama).

      [272].     See Rosemary J. Coombe, Objects of Property and Subjects of Politics: Intellectual Property Law and Democratic Dialogue, 69 Tex. L. Rev. 1853, 1865–67 (1991) (contending that increased enforcement of intellectual property rights, including the right of publicity, inhibits cultural dialogue); Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Calif. L. Rev. 125, 134 (1993) (theorizing that publicity rights limit “free expression and cultural pluralism”).

      [273].     Although doctrinal safeguards exist to protect some unauthorized expressive uses of celebrity personas, critics contend these safeguards are insufficient to vindicate free speech interests. See, e.g., Stacey Dogan, Bullying and Opportunism in Trademark and Right-of-Publicity Law, 96 B.U. L. Rev. 1293, 1298 n.18 (2016) (vagueness of publicity rights defenses leads to unjustified settlements from risk-averse defendants); Thomas E. Kadri, Drawing Trump Naked: Curbing the Right of Publicity to Protect Public Discourse, 78 Md. L. Rev. 899, 954 (2019) (publicity rights’ transformativeness test “has more often resulted in expressive works being penalized”).

      [274].     See, e.g., Kirby v. Sega of Am., Inc., 50 Cal. Rptr. 3d 607, 616–17 (Cal. Ct. App. 2006) (finding unauthorized use of singer’s likeness for “twenty-fifth-century space reporter” video game character was transformative).

       [275].  James Poniewozik, TV’s War With the Robots Is Already Here, N.Y. Times (May 10, 2023), https://www.nytimes.com/2023/05/10/arts/television/writers-strike-artificial-intelligence.html [https://perma.cc/3NHG-M7EQ].

       [276].  Id.

      [277].     Id; see generally Kyle Chayka, Filterworld: How Algorithms Flattened Our Culture (2024) (contending that algorithmic recommendation engines make it less likely that audiences will encounter art that is surprising or challenging).

      [278].     The same criticism could be levied against reanimations for selling and grieving. Reanimated spokespersons are supposed to be exact doppelgangers of departed celebrities—otherwise, they would not be recognized by consumers and would have little endorsement value. Products meant to resurrect deceased loved ones rest their appeal on their ability to accurately revive the look, cadence, and sentiments of the actual person. For example, Microsoft’s patent promises the ability to “converse and interact in the personality of the specific person,” including “determining and/or using conversational attributes of the specific person, such as style, diction, tone, voice, intent, sentence/dialogue length and complexity, topic and consistency.” Clare Duffy, Microsoft Patented a Chatbot That Would Let You Talk to Dead People, CNN (Jan. 27, 2021), https://www.cnn.com/2021/01/27/tech/microsoft-chat-bot-patent/index.html [https://perma.cc/X9CM-JUXB].

      [279].     Favoring old over new talent is a particular problem if we believe in inclusiveness. In response to public outcry, Hollywood institutions are trying to make amends for their exclusionary histories. Steps have been taken to make on-screen representation more diverse and to restructure the awards the film industry doles out so that BIPOC actors no longer face racist headwinds. Casting calls to the dead threaten to counter these initiatives by recreating the dynamics of a non-diverse past.

      [280].     1 McCarthy & Schechter, supra note 167, at § 9:16.

      [281].     Legislators adopted some of these lengthy postmortem terms in a naked attempt to outflank other states and convince wealthy celebrities to reside within their state boundaries. See Bartholomew, supra note 170, at 326. The duration of the postmortem term for copyright protection also seems to have influenced lawmakers, see Hebrew Univ. of Jerusalem v. Gen. Motors LLC, 903 F. Supp. 2d 932, 938 (C.D. Cal. 2012), even though there is now agreement that extending copyright’s term to seventy years beyond the life of the author was a mistake. Brooks Barnes, Mickey’s Copyright Adventure: Early Disney Creation Will Soon Be Public Property, N.Y. Times (Dec. 27, 2022), https://www.nytimes.com/2022/12/27/business/mickey-mouse-disney-public-domain.html [https://perma.cc/4FEN-KRPE] (describing the “bad, bad odor” surrounding the increase in the copyright term in 1998 and the resulting lack of Congressional appetite for any further extensions).

      [282].     Marx notes that, thanks to digital culture, younger listeners, instead of finding music unique to their own generation, increasingly adopt the same musical tastes of the generation before, a recipe for cultural stasis. Marx, supra note 265, at 227–33; see also Jason Farago, Why Culture Has Come to a Standstill, N.Y. Times Mag. (Oct. 10, 2023), https://www.nytimes.com/2023/10/10/magazine/stale-culture.html#:~:text=A%20Times%20critic%20argues%20that,to%20be%20a%20bad%20thing.&text=At%20the%20Metropolitan%20Museum%20of,woman%20in%20the%20latest%20fashion [https://perma.cc/FT7M-PUKN] (positing that, thanks in part to “digital tools,” “[w]e are now almost a quarter of the way through what looks likely to go down in history as the least innovative, least transformative, least pioneering century for culture since the invention of the printing press.”).

      [283].     Another reason for limiting a postmortem right to twenty years, not discussed in this piece, is that publicity rights lasting far beyond death threaten to pass the rewards of fame down through a “favored bloodline.” Hebrew Univ. of Jerusalem, 903 F. Supp. 2d at 942. As the Sixth Circuit noted four decades ago, not only should we be skeptical of the incentive effects from a lengthy postmortem right of publicity term, but such a term produces an economic windfall passing from generation to generation, making the children and grandchildren of celebrities a new kind of American aristocracy. Memphis Dev. Found. v. Factors Etc., Inc., 616 F.2d 956, 959–60 (6th Cir. 1980). When constructing a right to be left dead, it would be better to have a short-term right benefitting cultural productivity than a long-term right generating revenue streams for celebrity “nepo babies.”

      [284].     See supra notes 14–21.

      [285].     Actors have reacted strongly to the prospect of unauthorized reanimations, see supra note 62, and major studios may be unlikely to engage in such a postmortem rush to commercialize thanks to the need to preserve amicable relations with living talent. But differently situated entities—video game companies, social media platforms, small filmmakers, etc.—may not exercise the same restraint.

      [286].     See Nicholas Barber, Why Biopics Go So Wrong, BBC.com (Jan. 14, 2021), https://www.bbc.com/culture/article/20210114-why-biopics-go-so-wrong [https://perma.cc/8D6K-M56T] (suggesting a biopic about David Bowie would be better if filmmakers had consulted with his estate).

      [287].     See supra note 242.

      [288].     Eva E. Subotnik, The Fine Art of Rummaging: Successors and the Life Cycle of Copyright, in Research Handbook on Art and Law 26, 34 (Jani McCutcheon & Fiona McGaughey eds., 2020).

      [289].     Id. at 29.

      [290].     See Preservation Risk, Media Digitization & Pres. Initiative, https://mdpi.iu.edu/collections/preservation-risks.php [https://perma.cc/9VPS-4J3A] (describing how analog and physical digital recordings are already becoming “obsolete”).

      [291].     See Clients, CMGWorldwide, https://www.cmgworldwide.com/wp-content/uploads/2023/11/CMG-Worldwide-Client-List-23.pdf [https://perma.cc/3KG9-5JAB].

      [292].     Colin McCormick & James Deruvo, Furious 7: Which Brian O’Connor Scenes Weren’t Paul Walker, Screen Rant (May 20, 2023), https://screenrant.com/furious-7-brian-scenes-not-paul-walker-brothers [https://perma.cc/HW9V-CMEZ].

      [293].     Ginger Adams Otis, Latest ‘Fast & Furious’ Movie Speeds to Top of Weekend Box Office, Wall St. J. (May 21, 2023), https://www.wsj.com/articles/latest-fast-furious-movie-speeds-to-top-of-weekend-box-office-7b6486 [https://perma.cc/7TY7-XA6P].

      [294].     Extending the right twenty years after death also has the merit of providing economic sustenance for the personality’s minor children—something that reasonably fits within incentive theory—without lasting so long as to turn the right into a regressive means for multi-generational wealth transfer.

      [295].     1 McCarthy & Schechter, supra note 167, at § 4:4. At one point in 1979, the California Supreme Court held that the right only descends if the person exploited their identity within their field of professional activity during their lifetime. Lugosi v. Universal Pictures, 603 P.2d 425, 428–30 (Cal. 1979). The California legislature subsequently abrogated Lugosi, prohibiting consideration of whether the person exploited their personality during their lifetime for eligibility for the postmortem right. Cal. Civ. Code §§ 3344.1(g)–(h). In other jurisdictions, posthumous publicity rights require posthumous exploitation. For example, Louisiana’s postmortem right to prevent unauthorized digital replicas resembles trademark law in that it terminates if there has been no commercial use of a person’s identity for three consecutive years after death. La. Rev. Stat. § 51:470.3(E)(1).

      [296].     15 U.S.C. § 1127 (“Nonuse for 3 consecutive years shall be prima facie evidence of abandonment.”).

      [297].     Cooper v. Goldfarb, 154 F.3d 1321, 1326–27 (Fed. Cir. 1998).

      [298].     See Marketa Trimble, Patent Working Requirements: Historical and Comparative Perspectives, 6 U.C. Irvine L. Rev. 483, 487–97 (2016) (discussing the history of “working requirements” in different countries).

      [299].     Robert G. Bone, Of Trolls, Orphans, and Abandoned Marks: What’s Wrong With Not Using Intellectual Property?, 42 Colum. J. L. & Arts 1, 3 (2018). It is true that copyright protection is different in that it exists whether the work at issue was exploited or not. But persuasive arguments can be made for requiring use for copyright, at least in some circumstances, to avoid the problem of older works that are no longer in widespread circulation and where it has become difficult to find the copyright holders. See id. at 37–41.

      [300].     See, e.g., In re Clearview AI, Inc. Consumer Priv. Litig., 585 F. Supp. 3d 1111, 1129 (N.D. Ill., Feb. 14, 2022); Renderos v. Clearview AI, No. RG21096898, 2022 WL 17326440, at *5–7 (Cal. Super. Ct., Nov. 18, 2022).

      [301].     See Jason M. Schultz, The Right of Publicity: A New Framework for Regulating Facial Recognition, 88 Brook. L. Rev. 1039, 1043–45 (2023) (describing how facial recognition systems are trained).

      [302].     See infra Part II.A.

      [303].     See Jeanne C. Fromer, Should the Law Care Why Intellectual Property Rights Have Been Asserted?, 53 Hous. L. Rev. 549, 587–92 (2015) (analyzing problems with rightsholders asserting claims “with motives mismatched to the intellectual property system”).

      [304].     45 C.F.R. § 160.103 (extending the Health Information and Privacy Accountability Act’s definition of “[p]rotected health information” to those who have been dead for less than fifty years); Meredith Wadman, What Does the Historic Settlement Won by Henrietta Lacks’s Family Mean for Others?, Science (Aug. 7, 2023), https://www.science.org/content/article/what-does-historic-settlement-won-henrietta-lacks-s-family-mean-others (discussing use of unjust enrichment claims for commercializing someone’s cells without permission) [https://perma.cc/6LJY-4FMY].

      [305].     A Deep Dive into the History of Cadaver Use and Whole Body Donation, Rsch. for Life, https://www.researchforlife.org/blog/a-deep-dive-into-the-history-of-cadaver-use-and-whole-body-donation/ [https://perma.cc/4PNS-WBXK] (last visited Jan. 9, 2024).

      [306].     Juri L. Habicht, Claudia Kiessling & Andreas Winkelmann, Bodies for Anatomy Education in Medical Schools: An Overview of the Sources of Cadavers Worldwide, 93 Acad. Med. 1293, 1293 (2018).

      [307].     Dorothy Nelkin & Lori Andrews, Do the Dead Have Interests? — Policy Issues for Research After Life, 24 Am. J. L. & Med. 261, 264 (1998).

      [308].     David M. Shaw, Juliane V. Gross & Thomas C. Erren, Data Donation After Death: A Proposal to Prevent the Waste of Medical Research Data, 17 EMBO Rep. 1, 14–17 (2016). The key here is ethical and even-handed treatment of the dead for research purposes. For a thoughtful discussion of anti-subordination interests in treatment of the dead, see Smith, supra note 68, at 238–51.

      [309].     Sarah Weinman, Shel Silverstein Comes Alive in a New Book, 12 Years After his Death, Atlantic (Sept. 20, 2011), https://www.theatlantic.com/entertainment/archive/2011/09/shel-silverstein-comes-alive-in-a-new-book-12-years-after-his-death/245228/ [https://perma.cc/N38E-RVYX].

      [310].     Susan David deMaine, Access to the Justices’ Papers: A Better Balance, 110 L. Library J. 185, 189 (2018).

      [311].     Id.

      [312].     Id.

      [313].     Kathryn A. Watts, Judges and Their Papers, 88 N.Y.U. L. Rev. 1665, 1683–85 (2013).

      [314].     For discussions of the value of building datasets from digital remains, see Tama Leaver, The Social Media Contradiction: Data Mining and Digital Death, 16 M/C J. (2013); Carl J. Öhman & David Watson, Are the Dead Taking Over Facebook?: A Big Data Approach to the Future of Death Online, 6 Big Data & Society 1, 9-11 (2019).

      [315].     See Jennifer E. Rothman, The Inalienable Right of Publicity, 101 Geo. L.J. 185, 219–20 (2012) (arguing “the law should be structured in such a way as to support both those who seek to commercialize their identities and those who do not”). By making it difficult to abandon one’s rights or commit heirs to not commercializing the persona, these laws tend to encourage use of the dead in advertising. This Article’s proposals for facilitating the wishes of the decedent are designed to repair these shortcomings in current law. See infra Part IV.B.1.

      [316].     Another objection to a commercial exploitation requirement for posthumous rights is elitism. Only those who have already enjoyed some success in the public sphere will be able to assert a right to be left dead. For some, a right that can be wielded by the famous but not the unknown offends their sense of fairness. See Noa Dreymann, John Doe’s Right of Publicity, 32 Berkeley Tech. L.J. 673, 674 (2017) (criticizing the suggestion that “only celebrities are worthy of protection”). But the right of publicity has long favored the famous as everyday individuals find themselves unable to demonstrate commercial value in their identities. See, e.g., Hooker v. Columbia Pictures Indus., Inc. 551 F. Supp. 1060, 1062 (N.D. Ill. 1982) (rejecting an appropriation claim because plaintiff had no “reputation” in relevant field); Cox v. Hatch, 761 P.2d 556, 564 (Utah 1988) (rejecting appropriation claim because plaintiffs did not “enjoy any particular fame or notoriety”). Arguments against a prior exploitation requirement need to confront the larger issue of why lawmakers have provided a right that is most valuable to the most well-known.

      [317].     See infra Part I.B.

      [318].     See Jeffrey M. Skopek, Reasonable Expectations of Anonymity, 101 Va. L. Rev. 691, 733­–37 (2015) (evaluating Fourth Amendment implications of “familial searching,” i.e., looking for partial matches in DNA databases to find genetic relatives of a person whose DNA is at crime scene); Lydia Morrish, A Face Recognition Site Crawled the Web for Dead People’s Photos, Wired (Mar. 13, 2023), https://www.wired.com/story/a-face-recognition-site-crawled-the-web-for-dead-peoples-photos/ [https://perma.cc/3TBQ-ZW6G] (discussing potential application of EU’s General Data Protection Regulation for using pictures of the dead to identify the living).