General Principles Generally, under the common law, any living person has a right of privacy, which includes the right not to have one's likeness or identity used for commercial purposes without one's permission. Many states have enacted statutes that provide that an individual has a right of publicity, focusing on the economic value of one's identity. The right of publicity basically is the right to control the commercial exploitation of one's identifying attributes, including one's signature. In addition to the states which have recognized a common law right of privacy or publicity, there are fifteen states that have statutes that specifically create rights of privacy, publicity or some aspects of both. Those states are California, Florida, Indiana, Kentucky, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and Wisconsin.
Some state laws authorize treble damages.
As for those persons who are deceased, some states have created post mortem rights under their publicity laws. In such states, you must have permission from the decedent's estate or heirs to use the decedent's likeness or identity for a commercial purpose. States with express post mortem statutory rights are California, Florida, Indiana, Kentucky, Nebraska, Nevada, Oklahoma, Tennessee, Texas, and Virginia. Thus, for persons who are deceased, it is important to determine how long they have been dead, what actions have been taken since their death, and which state law would apply. Generally, in cases where post mortem rights of publicity are at issue, the applicable law is that of the state of domicile of the personality at the time of death, although courts have not analyzed the choice of law question consistently.