Postmortem Privacy

Anita L. Allen & Jennifer E. Rothman* November, 2024

Since their inception in the late nineteenth century, privacy rights have been widely understood to terminate with a person’s death. The “no-privacy-rights-for-the-dead” doctrine has been repeated for nearly 130 years. As demonstrated in this Article, the reality on the ground deviated from this common pronouncement even early on. The divergence is so great today that sustained consideration of postmortem privacy is essential. This is especially so given urgent calls to protect the digital assets of the dead and evolving technology that allows for the reanimation of deceased performers and loved ones. This Article provides a theoretical foundation for determining whether, when, and how the law should extend privacy rights after death.

We begin by mapping what we call “postmortem privacy,” revealing both the surprisingly wide extension of privacy protections after a person’s death, and the haphazard, inconsistent, and at times incoherent state of the law. We then interrogate the array of interests that could justify postmortem privacy rights. We first situate this analysis in the law’s “jurisprudence of exclusion,” which withholds rights from entities that lack traits deemed essential for rights ascription. We then consider why, despite the initial impetus to deny rights to the dead, the law increasingly gravitates toward doing so. The best reasons to extend postmortem privacy are rooted not in the ongoing interests of the dead, but instead in the interests of the living and society. In particular, living individuals have interests in the treatment of their future deceased selves that we denominate the interests of the “future-decedents.” The living also have interests tied to their deceased relatives and loved ones that we designate the interests of the “relational-living.” Finally, society has a collective interest in treating the dead with respect.

Postmortem privacy, however, must be bounded both to accommodate competing interests and also to ensure that it appropriately furthers its objectives. Accordingly, in its final part, this Article explores important limits on the scope of postmortem rights, including boundaries of eligibility, standing, temporal duration, and the competing interests of the living, including the freedom of speech. Ultimately, we conclude that there are convincing reasons to recognize postmortem privacy rights. However, the current law, by focusing on commercial value after death as the prime basis to extend rights, is off kilter. Postmortem privacy should be for everyone, not just the famous, and should empower survivors and future-decedents to limit the commercialization of the dead. Instead, the current system incentivizes unrelated companies to exploit and profit from the dead without meaningfully protecting postmortem privacy. Our analysis frames a markedly different normative and practical vision than the one we have today and provides a foundation on which to build a more coherent, fair, and predictable postmortem privacy.

Introduction

There has never been a more important time to revisit the common claim that privacy rights terminate with a person’s death. Increasingly when we die, we leave behind troves of personal email and social media. Today’s technology enables the reanimation of dead celebrities and ordinary people alike, whether to produce new performances by a Hollywood screen legend or to recreate the voices of recently massacred children to advocate for gun control.¹ Exploitation of the dead has not only been generating cash,² but also outrage. Consider the outcry after supporters of Robert F. Kennedy Jr.’s presidential campaign mimicked his renowned uncle, President John F. Kennedy, in an advertisement that aired during the Super Bowl, or the successful lawsuit brought by basketball legend Kobe Bryant’s widow when crash-scene photographs showing his dead body were circulated to the public.³ Disapproval of sensationalizing images of a person’s death remains both longstanding and evergreen, from a post-World War II publication of “the dying expression of a woman crushed by a subway train,”⁴ to the more recent circulation of photographs of a New York City man shot dead in the neck and “lying on the floor of a No. 3 train in a pool of his own blood.”⁵

The idea of express rights of privacy emerged in the late nineteenth century.⁶ At that nascent stage, when the contours of privacy rights were still up for debate, many courts and scholars confidently declared that if rights of privacy existed, they would certainly terminate with death. On first consideration of the right in 1895, New York’s highest court declared that whatever right of privacy a person might have expired with them.⁷ In 1903, W. Archibald McClean echoed this exact sentiment, predicting that “the future dominion of the right of privacy,” would be built on the premise “that whatever right of privacy an individual has, dies with him or her.”⁸ This traditional “no-privacy-rights-for-the-dead” doctrine has been widely repeated for nearly 130 years.⁹ However, as we show, even early on the reality on the ground deviated from this common pronouncement, and this divergence has only grown over time. The breadth of the disconnect is so great today that a reexamination of postmortem privacy is essential. This is especially so in light of increasing calls to protect rights to digital assets linked to deceased persons and evolving technology, including generative artificial intelligence, that allows for the realistic reproduction of the dead.¹⁰ Several draft bills circulated in Congress would explicitly extend rights to the future performances of the dead.¹¹ Similar laws are being considered or recently have been passed in states,¹² and postmortem rights formed a key provision of a recent collective bargaining agreement between producers and the actors’ union.¹³

The privacy rights of the dead are increasingly of interest to advocates, litigants, and scholars.¹⁴ Yet there remains jurisprudential confusion and disagreement over whether, when, and how the law should extend privacy rights to the deceased.¹⁵ Addressing this confusion and disagreement is the aim of our Article. Thus far, consideration of the topic has been either in passing or largely focused on a specific issue such as digital assets or the reanimation of performers in isolation.¹⁶ The goal of this Article is to intervene in this chaotic state of affairs and provide a broader theoretical analysis to explain a growing trend exemplified by the exponential growth in state adoption of postmortem right of publicity laws and the increasing number of federal statutes that expressly protect the privacy of the dead, with more seemingly on the way.¹⁷ This Article provides guidance for how the law should address concerns over privacy rights for the dead and their living relations, and how such rights should be shaped and limited.

In Part I, we identify the diverse pockets of law wherein privacy-based interests extend to the dead or their survivors. We consider tort law, federal constitutional law, data protection law, and intellectual property law. This wide range of examples is essential to understand the foundational norms at work and shed light on the interests and values that could support what we call collectively “postmortem privacy.”¹⁸

In Part II, we evaluate the articulated and unarticulated justifications for extending privacy rights to, or in connection with, a decedent. We begin with what we term the law’s “jurisprudence of exclusion,” which withholds rights to entities lacking traits deemed essential for rights ascription. We then consider why, despite the initial impetus to deny rights to the dead, the law appears to increasingly gravitate toward granting these rights. Given the reality that current law already extends rights related to the privacy of the dead, albeit in an ad hoc and inept manner, we interrogate specific interests that could justify such an extension. Ultimately, the best reasons to extend rights to some forms of postmortem privacy are rooted not in the ongoing interests of the dead but instead in the interests of the living. In particular, the living have interests in the treatment of their future deceased selves—which we denominate the interests of “future-decedents.” The living also have interests arising out of the treatment of the deceased with whom they are connected. We designate these interests as those of the “relational-living,” a group that includes loved ones and kin. Finally, society, composed of living persons, has a collective interest in treating the dead with respect and honor. Progress toward a more coherent law of postmortem privacy requires carefully unpacking this panoply of interests.

Given our conclusion that convincing reasons warrant recognizing postmortem privacy rights, in Part III we consider possible contours and limitations of such rights. We first address how to mediate possible conflicts among the interests identified in Part II. We next consider the challenge of determining who should be eligible to bring postmortem claims and how long postmortem privacy rights should last. We also identify important reasons to limit postmortem privacy rights, including the freedom of members of the public to communally grieve, commemorate, and speak about the deceased. The interests of the dead, or of the living in relation to the dead, should not unduly burden or limit the opportunities and speech of the living.

This project is a first step in moving away from the pro forma claim that privacy ends with death and shines a light on the current pockets of postmortem privacy. Ultimately, there are legitimate justifications for recognizing a postmortem privacy right, or at least a right for the living tied to the dead. But it is essential to better understand why we should do so, both as a society and as a jurisprudential matter, because the best reasons for extending such a right suggest a different vision of postmortem privacy rights than that which exists today. The current law, which focuses on commercial value after death as the prime basis to extend rights, has it backwards or at least significantly askew. Properly understood, postmortem privacy should be for everyone and should empower survivors and future-decedents to limit the commercialization of the dead. Instead, the current approach incentivizes unrelated companies to develop and profit from portfolios of dead celebrities. Our analysis develops a foundation upon which we can hopefully move forward and build a more coherent, fair, and predictable postmortem privacy than the one we currently have.

I. Mapping Privacy for the Dead

The purported rule of blackletter tort law provides that privacy interests must terminate with death, because privacy rights are inherently personal and the dead have no “feelings” or “sensibilities” to injure.¹⁹ This rule no longer holds true, if it ever did. Significant realms of state and federal privacy protection recognize rights based on the interests of the deceased and the living connected to the deceased. We consider here “the diverse range of things ordinary people and legal professionals refer to when they speak of privacy.”²⁰ Although there is no single, universally-embraced definition of privacy, federal and state law in the United States inclusively attach the term “privacy” to a discrete set of ideal and actual states of affairs, which can be labeled physical, decisional, informational, associational, intellectual, and proprietary privacies.²¹ Each of these aspects of privacy can be understood to arise in postmortem contexts.

We will first consider postmortem privacy within the context of tort law, in which both the blackletter rejection and the reality of postmortem privacy first emerged. We then will look at the acceptance of postmortem privacy outside of tort law. Our account considers claims that are sometimes thought to sit outside privacy law, but that are an important part of the postmortem privacy story. For example, we consider both the right of publicity and aspects of intellectual property laws that are at least partially directed at protecting privacy. Excluding these laws has obscured the bigger picture of postmortem privacy by subsuming these laws into a testamentary-disposition-of-property framework. Notably, the right of privacy itself has been conceived of as a property right in persons that serves as the basis to exclude others from interfering with a person’s body, reputation, identity, and seclusion.²² So, categorizing something as property does not per se take it out of or place it within the privacy-based frame.

A. Postmortem Rights Under Privacy, Publicity, and Related Torts

The no-privacy-rights-for-the-dead doctrine has been a feature of privacy torts since their inception.²³ Yet, there has been longstanding ambivalence about whether privacy tort actions based on invasions while alive can continue or commence after death, whether new invasions can occur and be litigated after death, and whether the privacy rights of the living can be violated by the mistreatment of deceased relatives.²⁴ The great torts scholar William Prosser noted this ambivalence but concluded, at least until the early 1970s, that privacy rights were “personal” in nature and “[t]he cause of action does not survive the individual, and cannot exist after death.”²⁵ Because privacy rights were personal, he also concluded that family members could not assert privacy claims for violations of a dead person’s privacy unless the relative’s “own privacy [was] invaded along with” that of the decedent.²⁶

Prosser delineated four distinct privacy torts—intrusion upon seclusion, public disclosure of private facts, appropriation of name or likeness, and publicity placing a person in a false light—each of which he suggested terminated with death.²⁷ The Restatement (Second) of Torts adopted Prosser’s approach,²⁸ but by the time of its publication in 1977, the Restatement signaled a shifting view on postmortem privacy. Although it left in place the general rule that only a “living individual” could maintain a privacy action, it carved out the appropriation or right of publicity branch of the privacy torts.²⁹ Recognizing a split of authority on the matter, the Restatement suggested that the “appropriation of name or likeness” branch of privacy, sometimes also called the right of publicity, “may be held to exist following [] death.”³⁰ Since the time of the publication of the Restatement (Second), tort law has leaned only more heavily in the direction of extending postmortem privacy rights.

Virtually every state that has adopted a common law privacy tort has adopted a variant of Prosser’s four-tort framework. In our evaluation of the privacy torts, we utilize Prosser’s taxonomy and then consider the common law torts of sepulcher and sepulture.

1. Intrusion and Disclosure of Private Facts

The Restatement (Second) of Torts suggests that it is blackletter law that privacy claims cannot accrue after death, other than those arising under the appropriation branch. Reality, however, substantially deviates from this commonly-claimed principle. Both intrusion and disclosure of private facts decisions have allowed postmortem privacy claims. The most successful claims have arisen in the context of the dissemination of photos of deceased loved ones or when the bodies of the deceased are disturbed or disrespected. While not always successful, such lawsuits have a long history with an increasing trajectory of acceptance, one that the Supreme Court has noted and endorsed.³¹ What is sometimes termed “death image” litigation has been the most successful of the non-appropriation privacy claims involving dead people. Vanessa Bryant’s recent recovery of approximately $30 million for the unauthorized taking and circulation of accident-site death images of her husband, basketball legend Kobe Bryant, and their daughter illustrates the continued (and perhaps increasing) success of these claims.³²

Most of the “postmortem” claims in privacy tort law rest on a “relational privacy” injury—an injury to the living stemming from wrongs to the deceased.³³ Sometimes these relational claims are understood as direct injuries to the living based on an action taken against the dead. The Supreme Court of Oklahoma took this approach in its 2023 decision in Guilbeau v. Durant. In Guilbeau, the plaintiff brought an intrusion upon seclusion claim alleging that her privacy and the privacy of her deceased miscarried fetus had been violated by a hospital that manipulated the body into disturbing life-like positions, posed the fetus with angel wing props, and took numerous photos of the body.³⁴ The court allowed the plaintiff’s claim to proceed on the basis that her own privacy had been violated by the mistreatment of her miscarried child’s remains, noting that “[t]he miscarriage was more personal to Guilbeau than to anyone else in the world. . . . The right to control how the remains were handled belonged to Guilbeau.”³⁵

In postmortem intrusion and disclosure of private facts cases, courts often make distinctions between written descriptions of death and images (usually photographs) of a person’s (often mutilated) body; they do so in part to presumptively balance speech interests. Images are viewed more often as exploitative and unnecessary to provide relevant information to the public.³⁶ In Catsouras v. Department of California Highway Patrol, a California appellate court allowed a privacy-based claim brought by parents against the highway patrol for disseminating death images of their daughter’s decapitated body after a car accident.³⁷ The court rooted the disclosure of private facts claim in the surviving family members’ privacy rights, as distinguished from those of the decedent, differentiating between images of the deceased in which family have “a common law privacy right” and descriptions of the person’s death, in which “family members have no right of privacy.”³⁸ Death images are “private,” their dissemination “offensive and objectionable to a reasonable person,” and their content not a matter of “legitimate public concern.”³⁹

Decisions like Bryant, Catsouras, and Guilbeau are not an entirely new development. In 1912, the Court of Appeals of Kentucky held in Douglas v. Stokes that a photographer violated the privacy rights of the parents of deceased conjoined twins when, after being commissioned to take photographs of the infants for the parents, the defendant made additional photographs and filed one with the Copyright Office seeking registration for the image.⁴⁰ The court analogized the plaintiffs’ claim to one of appropriation and emphasized the serious harm flowing from such a privacy violation: “The most tender affections of the human heart cluster about the body of one’s dead child.”⁴¹ The Supreme Court of Georgia agreed with this approach in its 1930 decision in Bazemore v. Savannah Hospital, when it allowed parents of a deceased child to sue for a privacy invasion when a newspaper published photographs of their child who had been born with his heart outside of his body.⁴² The family found the publication shameful and distressing, and the court allowed the claim to proceed despite the dead child’s inability to assert his own rights. The court again rooted the privacy claim in the parents, even though it was not the parents’ image that was circulated.⁴³

In a recent extension of the successful death image cases, a California appellate court ruled that a woman has a privacy interest in controlling the dissemination of a sonogram of her living twin fetuses that later died either through abortion or miscarriage.⁴⁴ Plaintiff Shantel Jackson sued her ex-boyfriend, the famous prize-fighter Floyd Mayweather, for a host of torts, including invasion of privacy, when Mayweather posted on social media a copy of the fetal sonogram image, stating that Jackson had aborted the pregnancy. In allowing her claim, the court analogized to Catsouras, noting that like the parent of a deceased child, Jackson had standing to assert privacy claims respecting the publication of images of her healthy, unborn fetuses.⁴⁵ This decision suggests that, ironically, a postmortem privacy right may extend to protect the circulation of images (or other information) concerning abortions or miscarriages even though the right to an abortion under Fourteenth Amendment privacy jurisprudence has been toppled.⁴⁶

While cases involving the circulation of death images have been the most successful common law postmortem privacy claim, decisions have not been uniform across jurisdictions or time. In contrast to Catsouras and the other death image cases discussed so far, the Supreme Court of Massachusetts dismissed a very similar claim when parents sued over the publication of a photograph of the disfigured dead body of their daughter who was killed in a terrible car accident.⁴⁷ The Massachusetts court concluded that the privacy of the parents was not violated because the death images did not include their likenesses.⁴⁸ The Arkansas Supreme Court also rejected such “relational privacy” claims,⁴⁹ but notably allowed a claim by relatives arising out of a violation of the deceased’s privacy to proceed instead under an intentional infliction of emotional distress theory.⁵⁰

In sum, despite the lack of uniformity, there is a longstanding allowance of postmortem intrusion and disclosure of private facts claims, at least in the narrow context of death images and corpse manipulation or disruption. Successful claims have also been brought stemming from other uniquely distressing moments surrounding a loved one’s death.⁵¹ We note that many states supplement these common law tort claims with statutes that expressly limit the circulation of death images and the disturbance of human remains.⁵²

2. Appropriation and the Right of Publicity

In 1977, the Restatement (Second) of Torts reported that postmortem privacy claims based on wrongful appropriation were an exception to the rule against extending privacy rights postmortem. The Restatement explained that because appropriation or publicity rights were “similar to impairment of a property right,” they could survive death like other property and pass to heirs.⁵³ A common law principle, action personalis moritur cum persona (“a personal action dies with the person”), distinguished between causes of action rooted in a person, which are not survivable, and those rooted in property, which survive death.⁵⁴ Some courts and commentators have suggested that since an appropriation privacy tort is more akin to a commercially exploitable property right, such claims could survive death, in contrast to the other privacy-based torts that are rooted in “feelings, sensibilities or reputation.”⁵⁵ Furthermore, because copyrights and patents are freely transferable property that can pass after death to heirs of their owners, some jurists (and litigants) have argued the same should be true for publicity rights.⁵⁶

This is a curious carve-out. The appropriation branch of privacy was, after all, the first privacy tort to be adopted and was therefore part and parcel of the longstanding ambivalence about postmortem privacy.⁵⁷ Uncertainty about whether appropriation/publicity claims can accrue after death, whether treated as property or not, therefore stems from the first days of privacy law. The first state supreme court to recognize a right of privacy at common law, the Supreme Court of Georgia, suggested in dicta in its 1905 decision in Pavesich v. New England Life Ins. Co., that the right might extend postmortem.⁵⁸ This case involved what today would be considered a right of publicity or appropriation-based claim. (An individual’s photograph was used without consent in an advertisement that appeared in a newspaper.) Some states that adopted early appropriation-based privacy statutes extended claims to deceased individuals, notably Utah and Virginia, in 1909 and 1919 respectively.⁵⁹ Most states, however, rejected postmortem extensions of privacy law under their common law.⁶⁰ The dominant trend of rejecting postmortem claims continued until the late 1970s when a sea change took place. This shift was driven by two events in the summer of 1977: the Supreme Court analogized the right of publicity to copyrights and patents in Zacchini v. Scripps-Howard Broadcasting and Elvis Presley died, leaving behind numerous battles over who would profit from his identity thereafter.⁶¹ From this time forward, many states adopted postmortem rights by statute, and a small but growing number have done so under their common law.⁶²

Despite this trend, there remains ambivalence about whether appropriation-based privacy rights and right of publicity claims at common law can survive the death of the person whose privacy has been violated, and many states do not have statutes that extend such rights. Even among the states that do recognize postmortem publicity or appropriation claims, the parameters of these laws vary widely from state to state. Duration, for example, ranges from ten years to forever,⁶³ and states differ in who can bring such claims, with some limiting the right only to “deceased personalities.”⁶⁴

3. False Light

The only privacy tort that firmly maintains the “traditional” no-privacy-rights-for-the-dead doctrine is the false light tort. The false light tort is often considered a close kin of the defamation tort.⁶⁵ Like defamation claims, false light claims have been routinely denied to the dead under the theory that no reputational or dignitary harm related to false statements can affect a dead person.⁶⁶ This is true even if the misleading portrait of the deceased causes the living shame or “to be harassed, scorned and ridiculed.”⁶⁷ Nevertheless, a few courts have suggested they might allow a false light claim to survive death if the false depiction constitutes an “egregious” interference with the “character and memory of the deceased.”⁶⁸ The Eleventh Circuit took this approach in Tyne v. Time-Warner Entertainment, in the context of applying Florida law, which recognizes a relational privacy right. Daughters of a ship captain, who tragically died at sea, objected to the portrayal of their father in the film A Perfect Storm. Despite the court’s dicta that such postmortem false light claims were generally possible, the appellate court rejected the instant claim because the depiction at issue, even if false or misleading, was not sufficiently outrageous.⁶⁹

4. Rights of Sepulcher and Sepulture

The dead and their next of kin have common law rights of sepulcher and sepulture. Although these rights are not typically styled as privacy rights, they sound in or are adjacent to privacy and underscore the broad point that our law ascribes rights to the dead in such contexts. The “origins of American jurisprudence concerning the right of sepulcher” is the “ancient concept that every person is entitled to a proper burial.”⁷⁰ A sepulcher cause of action obtains in tort when there has been undue delay in turning over the body of the deceased to a designated or default next of kin for preservation, burial, or other disposition.⁷¹ Courts have extended the cause of action to cases of wrongful burial, wrongful disinterment, and mistreatment or loss of corpses.⁷² The right of sepulcher has sometimes been understood as a “quasi-property right,” derivative of the deceased’s right to a proper burial.⁷³ Some courts instead consider this a “legal right of the surviving next of kin to find ‘solace and comfort’ in the ritual of burial.”⁷⁴ The right thus protects the emotional interests of the living in ritual grieving and mourning, as well as furthers the dead’s interests in appropriate burial and treatment of their bodies postmortem.⁷⁵

By contrast to the right of sepulcher, the right of sepulture is an exclusive license or privilege to undisturbed internment in a specific cemetery plot or vault.⁷⁶ “The sanctity of sepulture” is recognized as “the right to have one’s remains respected and undisturbed in his or her last resting place.”⁷⁷ Individuals bring sepulture actions when they or their kin are allegedly dispossessed of burial sites, such as by disinterment or encroachment.⁷⁸ We see in these laws concerns over the integrity and solace of both the dead and their surviving relatives.

B. Postmortem Privacy Beyond Tort Law

Although some significant United States constitutional and statutory law conforms to the no-privacy-rights-for-the-dead rule, a good deal does not. Many federal and state privacy statutes extend postmortem privacy rights. We scratch only the surface of these many postmortem laws because, as will soon become clear, they are spread throughout our privacy and privacy-related law. We primarily focus on federal law; but even our limited survey demonstrates the abundance of laws that extend privacy rights to the dead or their heirs. It is surprising not only that so many statutes and agency rules extend privacy beyond the grave, but also that such wide variation exists respecting how they provide postmortem protection.

1. Constitutional Rights

Concordant with the no-privacy-rights-for-the-dead doctrine, interpretations of federal constitutional law hold that “a deceased person has no rights within our constitutional scheme.”⁷⁹ It follows that any constitutional privacy rights the living may have under the Bill of Rights or Fourteenth Amendment—tied to, for example, freedom of association, information non-disclosure, health and bodily integrity, childbearing, sex, or marriage—evaporate with death. Federal courts have held that no civil rights claims for injuries or wrongs in violation of constitutional rights under Section 1983 or Section 1985 can accrue after death.⁸⁰ Despite the denial of constitutional claims directly emanating from the dead, the Ninth and Tenth Circuits have extended constitutional privacy rights to living relatives tied to the dead.⁸¹ For example, the Ninth Circuit in Marsh v. San Diego allowed a mother’s Section 1983 claim for a violation of her own substantive due process rights when a prosecutor provided her child’s autopsy photographs to the press.⁸²

2. Corpse Integrity Statutes and Biospecimen Protections

Many statutes protect the sanctity of human remains in ways that reflect concern over the privacy interests of the deceased and of the living who are affected by mistreatment of the dead. Federal and state statutes place limits on the treatment of corpses; the taking and use of death images and autopsy information; unauthorized disinterment or other gravesite disruption; and protests or other disturbances at funerals and burial sites.⁸³ The federal government has supported the extension of postmortem privacy to protect the remains of members of Native American tribes. The Native American Graves Protection and Repatriation Act of 1990 was enacted to create an actionable legal interest in the remains of deceased Indigenous people housed in museums and other locations not controlled by their ancestors.⁸⁴ This law was passed to address the mistreatment of Native Americans whose ancestors’ dead bodies were sometimes used as anthropological specimens or commercialized as exotic collectibles without permission.⁸⁵ Only in 2022 was a provision made in federal law to address the mistreatment of the remains of African Americans, who have also historically been used as collectibles and specimens.⁸⁶ This recent law, the African-American Burial Grounds Preservation Program, does not create an actionable interest in remains, but instead provides funding to preserve Black burial grounds.⁸⁷ It does so because of the importance of “restoring, preserving, and maintaining” these historically neglected burial sites to pay “tribute” to the dead and “connect[] communities with their past.”⁸⁸

Federal laws also confer rights respecting human biospecimens and end-of-life decisionmaking. The Federal “Common Rule” governing ethical human subjects research applies only to living individuals, but privacy protections respecting biospecimens taken from identifiable persons survive their death, with no specified duration.⁸⁹ The Revised Uniform Anatomical Gift Act of 2006 (UAGA), which has been widely adopted by state legislatures, was designed to regulate medical and scientific uses of human tissue and body parts, including when material is derived from corpses.⁹⁰ Through the Patient Self Determination Act of 1990, Congress gave living patients the right to specify their final wishes regarding end-of-life decisions, including those concerning life support after brain death and the harvesting of organs, in binding advanced directives.⁹¹ States are also increasingly adopting laws that limit the harvesting or use of sperm, eggs, or embryos after a person’s death in the absence of evidence of consent by that person to have them used postmortem.⁹² In one notable decision to the contrary, a brain dead woman was kept on life support, over her family’s objections, to deliver a baby on the basis that she did not have privacy rights after death that would restrict such a conscription of her body.⁹³

3. Intellectual Property Rights

Although intellectual property laws are not usually thought of as protecting privacy, especially in the United States, a number of scholars have demonstrated that even in the United States such laws have long served goals separate from the dominant market narratives of these rights, including privacy-based interests.⁹⁴ The closeness of privacy and intellectual property values is also highlighted by Warren and Brandeis’s use of intellectual property cases as foundational precedents in building a freestanding privacy right.⁹⁵

Today, U.S. copyright law generally affords a term of protection “consisting of the life of the author and 70 years after the author’s death.”⁹⁶ The extension of postmortem protection enables heirs—if an author maintained ownership over a work or if termination is still available—to prevent the publication of a deceased author’s copyrighted (but unpublished) works, control how published works are distributed, and limit derivative works based on the original.⁹⁷ To the extent an heir holds the copyright to a death image, copyright law could limit the image’s circulation.⁹⁸ Perhaps surprisingly, the only explicit moral rights provision in the U.S. Copyright Act, the Visual Artists Rights Act (VARA), limits much of its scope expressly to the living.⁹⁹

Trademark and unfair competition laws also have aspects that protect individual privacy and limit use of a person’s name or likeness without permission, including after death.¹⁰⁰ Trademarks can exist in perpetuity, so if they are derived from a person’s name or likeness, they could extend indefinitely into the afterlife if heirs or companies holding these rights continue to sell products and services using these marks.¹⁰¹ For example, Elvis Presley’s estate could continue to assert trademark-based protection for the sale of merchandise, sound recordings, concert footage, and even touring holograms, potentially forever. The current prohibition on registering marks that “falsely suggest a connection with persons, living or dead”¹⁰² “was adopted to preserve the dignity of those depicted without consent, including the dignity of the deceased and their surviving family.”¹⁰³ Although the Section 2(c) bar to registering a mark that is comprised in part or in its entirety of another person’s “name, signature, or portrait” is mostly limited to the living, it expressly prohibits registration of a deceased U.S. President’s identity during the lifetime of their widow.¹⁰⁴

4. Rights Under the Privacy Act and FOIA

Two of the oldest sectoral federal privacy protection statutes, the Privacy Act of 1974 and the companion Freedom of Information Act of 1974 (FOIA), govern access to information about individuals contained in federal agency record systems. Neither expressly affords rights to the dead, and a deceased individual no longer has any Privacy Act rights, nor do their executors or next of kin.¹⁰⁵ Similarly, the FOIA privacy exemption-based rights have been held not to survive death.¹⁰⁶

Despite this ostensible rejection of postmortem privacy, FOIA has been read to protect the privacy of the decedents’ families in relation to the dead. In National Archives and Records Administration v. Favish, the Supreme Court held that the disclosure of death scene photographs over a family’s objections falls under the privacy-based exemption from FOIA because such a disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy” of the family.¹⁰⁷ The D.C. Circuit Court of Appeals in another FOIA case summed up the increasingly prevalent view that “death may ‘diminish’ the relevant privacy interests,” but “it ‘by no means extinguishes’ them because ‘one’s own and one’s relations’ interests in privacy ordinarily extend beyond one’s death.’ ”¹⁰⁸ Courts have extended this relational privacy right to exclude death images from FOIA disclosure, as well as suicide notes, and recordings of relatives’ last words.¹⁰⁹ In the context of a similar state freedom of information law, the New York Court of Appeals agreed that some privacy interests survive death.¹¹⁰ The court rejected the New York Times’ request to access the tapes and transcripts of 911 emergency calls made during the September 11, 2001 attacks on the World Trade Center because the public interest in hearing the dying words of the 911 callers was “outweighed by the interest in privacy of those family members and callers who prefer that those words remain private.”¹¹¹

5. Rights Under FERPA and HIPAA

Federal education and health statutes affecting nearly every American include some protections for postmortem privacy. Enacted the same year as the Privacy Act and FOIA, the Family Education and Right to Privacy Act of 1974 (FERPA) creates privacy rights that in some instances have been interpreted to survive death, potentially for decades.¹¹² Although FERPA itself is silent about what happens after a student’s death, the Department of Education has interpreted the statute to protect the privacy of deceased minors, but not those who die after turning eighteen. The Department has determined that for students who were minors at the time of death, their parents have the education record privacy rights that their child held under FERPA until the parents’ own deaths.¹¹³ However, for students eighteen or older, the Department determined that FERPA rights simply expire at the time of their death.¹¹⁴ The agency may have chosen this age marker because FERPA protects student records from disclosure to a student’s parents after the student turns eighteen.¹¹⁵ That dividing line, however, does not make sense for determining whether postmortem privacy should be extended to a deceased student. The release of a students’ sensitive information could negatively impact families no matter at what age a child died. By contrast, the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) expressly protects personal health information of an individual for fifty years after the individual’s death.¹¹⁶

6. Rights Protecting Census, SSA, IRS, and Other Financial Information

Numerous other federal statutes and agency rules extend privacy rights postmortem either intentionally or simply by the lack of a termination provision. Census data is protected for up to seventy-two years after collection. Because the seventy-two-year term of protection commences with the date of collection rather than the date of death, if the data were collected the day a person died, then the privacy protections could potentially run for seventy-two years postmortem.¹¹⁷ Both the Social Security Act and the Internal Revenue Code restrict the disclosure of tax return information about deceased individuals.¹¹⁸ Records of individuals’ tax and social security information receive protection against postmortem identity theft as well as financial privacy invasions affecting living family and heirs of the deceased. Existing financial privacy rules under the Gramm-Leach-Bliley Act protect access to the accounts of deceased persons to prevent fraud and pilfering, while allowing legitimate heirs, beneficiaries, and estates access upon proof of death and authorization.¹¹⁹

7. Rights to Digital and Electronic Privacy

Perhaps surprisingly, privacy laws that one might expect to address postmortem privacy do not. The Electronic Communications Privacy Act of 1986 (ECPA), for example, covers digital assets—communication recordings, stored communications, and pen registry data—that persist beyond a person’s lifetime but does not expressly extend or deny protections after death.¹²⁰ Although ECPA was enacted to supplement the Fourth Amendment,¹²¹ which does not apply postmortem,¹²² the statute potentially extends after death since its provisions do not specify termination after death. ECPA’s Title II, the Stored Communications Act (SCA), has been interpreted by Massachusetts’s highest court to extend rights postmortem. In Ajemian v. Yahoo!, Inc., the court implied that a person or entity providing an electronic communication service could not voluntarily share the content of stored communications of deceased subscribers or customers.”¹²³ Although this prohibition has some exceptions (such as consent), it appears to be without durational limit. Since this 2017 decision in Ajemian, no court has held otherwise, and many service providers have adopted this interpretation of the law. However, the question of whether and how the Act applies postmortem has not been definitively resolved. Even if the court in Ajemian’s interpretation of the Act is correct, whether terms of service could limit or alter the scope of SCA rights remains uncertain.¹²⁴ Most states have tried to address these concerns, at least in part, by adopting the Revised Uniform Fiduciary Access to Digital Assets Act, which governs heirs’ access to decedents’ digital assets.¹²⁵ The Uniform Act seeks to balance potential conflicts between decedents’ information privacy and the need or desire of their relatives to access or control this data. To date, Congress has not enacted complementary national legislation to specifically address access to the digital assets of the deceased.

8. Evidentiary Privileges

Spousal, attorney–client, doctor–patient, psychotherapist–patient, and clergy–penitent relationships are confidential and have associated legal privileges that protect the privacy of information conveyed within the relationships. Though waivable by a surviving representative, these privileges survive death. In Swidler & Berlin v. United States, the Supreme Court expressly confirmed this view, holding that the government may not compel attorneys to disclose records of confidential communications between the attorney and their deceased clients.¹²⁶ The attorney–client privilege encourages the frank discussion vital to adequate legal representation. This objective requires postmortem protection to support communicative honesty while alive.¹²⁷ The same is true in other privileged contexts. Accordingly, doctors and therapists must not disclose information imparted during treatment and therapy even after a patient’s death;¹²⁸ the spousal privilege survives the death of one of the couple;¹²⁹ and the clergy–penitent or clergy–parishioner privilege survives the death of the penitent/parishioner.¹³⁰

C. What the Mapping of Postmortem Privacy Shows

The foregoing array of examples reveals the strikingly expansive legal terrain both within and outside of tort law in which the privacy interests of dead people and their survivors are protected. Privacy law is hardly the exclusive area of law in which these interests are protected.¹³¹ However, in contrast to property, wills, trusts, and estate laws which have long considered the reach of the “dead hand,”¹³² relatively little consideration of the treatment of the dead has taken place in privacy discourse.

Our mapping shows the seemingly inconsistent and even haphazard way in which regions of postmortem privacy protection have developed, particularly when adopted by statute. The inconsistency in federal sectoral privacy law’s approaches to postmortem data protection is particularly noteworthy. The laws vary in the terms of years protected after death, even among statutes that embody common “fair information practice principles” governing the collection, processing, use, and sharing of personal information, and among laws enacted in the same time period.¹³³ This variation in postmortem statutory privacy rights, particularly in combination with divergent constitutional law, law of evidence, and tort law approaches, confounds efforts to make sense of the current postmortem privacy landscape.

As Congress considers expanding federal privacy protections and creating new federal rights over the attributes, data, and performances of dead people,¹³⁴ legislators should improve consistency across federal laws, or provide legitimate reasons for differentiation. Without a clear understanding of why postmortem rights should be excluded or included, our laws will likely remain inconsistent, mystifying, and potentially both under- and overprotective of postmortem privacy. Accordingly, we will next turn to identifying what could support the postmortem privacy that we see proliferating throughout the law.

II. Identifying Postmortem Interests

In this Part, we weigh both the stated and implicit justifications for allowing privacy-based claims to extend beyond death, as well as hypothesize other justifications for doing so. Only with a clear vision of why we might extend postmortem privacy can we hope to develop thoughtful, coherent, and fair legal policies respecting postmortem privacy. We begin with legal rights theory and then consider three primary categories of justifications for postmortem rights: the interests of the deceased, the living, and society. We further divide the interests of the living into those of the future-decedents and those of the relational-living, whose connection with a decedent could support a relational privacy claim tied to the dead person.

A. The Jurisprudence of Exclusion

Moral theorists agree that death is a morally or ethically significant event, even though they disagree about such fundamental matters, as when death occurs;¹³⁵ whether the dead can be harmed, benefited, or wronged;¹³⁶ and whether the dead have interests, rights, or responsibilities.¹³⁷ Analogously, legal theorists agree that death is an event with legal consequences, while disagreeing about whether to ascribe, inter alia, harm, interests, and rights to the dead.¹³⁸ Despite these debates among theorists and across disciplines, the blackletter doctrine that privacy terminates with death remains a widespread claim and a starting point for discussions of postmortem privacy. What may be driving this initial doctrinal rejection of postmortem privacy, at least in part, is a principle of exclusion—a conclusion that death excludes a decedent from possessing some or all categories of rights.

The no-privacy-rights-for-the-dead doctrine is but one example of what one of us has designated the “jurisprudence of exclusion.”¹³⁹ Courts commonly face the issue of whether to ascribe rights to classes or entities beyond the paradigm rights-holders. Human beings (a paradigm) have rights, but the jurisprudence of exclusion is the set of reasons given for denying rights to, for example, trees, animals, and germ cells.¹⁴⁰ Law-abiding adult citizens (a paradigm) can vote in federal elections, but the jurisprudence of exclusion is the set of reasons offered for denying voting rights to children, incarcerated felons, and foreign nationals.¹⁴¹ Living, human moral agents (a paradigm) have privacy rights, but the jurisprudence of exclusion is one set of reasons given for denying privacy rights to corporations¹⁴² or, as we explore, decedents (and others based on the decedent’s passing).

The jurisprudence of exclusion has been influenced by theoretical understandings both of who can possess rights and the purposes of rights ascription.¹⁴³ Some theorists, termed “will theorists,” have argued that rights require the ability to meaningfully exercise free will.¹⁴⁴ For these theorists, having a right implies rationality and the capacity freely to exercise the right; by exercising a right they mean choosing to assert, waive, or alienate it (if alienable).¹⁴⁵ The dead cannot have rights in general or privacy rights in particular if doing so requires the ability personally to exercise such rights.¹⁴⁶ Nor can the dead have privacy rights if doing so requires having the ongoing capacity to sense, feel, and be offended—one of the central bases for extending privacy rights in the first place.¹⁴⁷ Popular versions of these philosophic notions espoused from the bench, bar, and academe, seem to have undergirded the no-privacy-rights-for-the-dead doctrine.

The dead can have no legal interests if legally pertinent interests boil down to protecting ongoing choices as will theorists might suppose. Will theorists are challenged by “interest theorists.”¹⁴⁸ Joseph Raz notably argued that rights are ascribed principally to protect objective conceptions of interest or well-being (rather than free choices based on subjective desires and preferences).¹⁴⁹ The interest theory has been accurately described as “more capacious than the will theory,” accommodating the notion of “unwaivable rights” and rights for “incompetents” such as fetuses, infants, and people in comas, who may have protectable interests in well-being though they lack the capacity of free, rational choice.¹⁵⁰ The interest theory can count respect for personal preferences and wants as components of one’s overall objective well-being. Interest theory “taps into the deeply plausible connection between holding rights and being better off.”¹⁵¹ If the dead have cognizable and protectable interests, then in principle an interest theory of rights could allow for the ascription of legal rights to the dead, including privacy rights. Raz did not so claim, but in broad strokes the theory could allow for such an extension.

In the next sections we suggest that, consistent with a plurality of normative theories of value, our legal system could assign postmortem privacy rights based on articulable interests.¹⁵² The no-privacy-rights-for-the-dead doctrine was more than a fluke but less than a careful read of the law’s generous interpretative possibilities, especially within the field of common law tort. What follows is our effort to consider the possible bases for extending privacy rights either to the dead or to living relations (or stewards) of the dead, in light of an array of possible interests of the dead, of future-decedents, of the relational-living, and of society more broadly.

B. Interests of the Deceased

In theory, after a person has died, entirely new claims could arise based on the deceased’s supposed interests in their bodily remains, property, reputation, memory, or personality attributes. But do the dead qua dead have genuine interests? Can they be better or worse off? Some philosophers have answered in the negative.¹⁵³ What could it mean then to take seriously the ascription of privacy rights based on the interests of the deceased, since “death clearly matters, as the deceased by definition cannot personally suffer the privacy-related injuries that may plague the living.”¹⁵⁴ We consider here both the possibility of continued personhood after death and the possibility of creating a legal fiction of personhood in the dead. In the next subpart, we will separately consider the interests of the living with regard to their future dead selves—what we dub the interests of future-decedents. However, in this subpart we will focus solely on interests that could continue or arise after death.

We acknowledge at the outset that many religious, spiritual, and cultural beliefs extend life beyond corporeal death.¹⁵⁵ Even if one credits belief in afterlives and an ongoing relationship with the dead, selecting among divergent belief systems requires passage into realms of metaphysical speculation. It is impractical for our law’s jurisprudence to foray into the legitimacy of age-old faiths and unverifiable beliefs. Nevertheless, we observe that some privacy laws appear to ascribe continued personhood to the dead in so far as the rights of the living continue unbroken forever or for a term of years after the right-holder dies, as under publicity statutes or HIPAA.¹⁵⁶ Death in these contexts seems to function similarly to incapacity due to coma or anesthesia—primarily affecting who is entitled to speak and act on behalf of the person.

Were we to treat the dead as having subjective, continuing privacy interests, those interests would have to hinge on preferences or values manifested by the decedent before death since one cannot confirm any ongoing communicative channels with the dead. Epistemological problems would loom large. We cannot know with certainty what choices the deceased would have made concerning matters arising after death. Changing social mores and evolving technology make such pre-death preferences, even if known, likely unhelpful, obsolete, or even ethically wrong. As we elaborate in Part III, turning to living family members or other representatives to speak on behalf of decedents is tempting but problematic; they may have limited knowledge of decedents, their own conflicting views, or both. We are therefore hesitant to extend postmortem rights under the notion that we are enabling decedents’ autonomy.¹⁵⁷

An alternative approach would base postmortem privacy rights on what are thought to be the objective interests of the dead. For example, there could be universal agreement that the dead should have privacy interests that protect against the desecration of their burial sites, the spreading of highly offensive falsehoods about them, or the appropriation of their attributes on or to sell products. But once we shift to these general (potentially) agreed upon interests of the dead, we think these may be better understood as “derivative” rights, pinned to the interests and “core” rights of the living, that we will develop in the sections to come.¹⁵⁸ In fact, it may be difficult to even agree on what these objective interests are without developing the core interests of the living from which they are derived.

Perhaps, the personhood of the dead could better be understood not as a continuing personhood akin to that of the living but instead as a useful legal fiction, like corporate personhood. Though insentient, corporations are treated as legal persons for many purposes.¹⁵⁹ They have a panoply of recognized interests and rights, including free speech rights.¹⁶⁰ Significantly, however, the common law has tended to withhold privacy rights (other than trade secret protections) from corporations.¹⁶¹ Courts have frequently declined to recognize a right of privacy tort for corporations on the grounds that they are not natural persons, in the sense of human beings, capable of sense and offense.¹⁶² Commentators have generally resisted corporate privacy rights on the same basis. R. Stevenson’s view is illustrative:

Privacy properly understood, comprehends a complex of social values that are embedded in the relationship between an individual and society, values to which the fictional corporate “person” can lay no claim. Corporations can no more be injured by an invasion of their “privacy” than they can swear, scratch, make love, or engage in any of the other flesh-and-blood activities that the walls of privacy serve to protect from unwanted observation.¹⁶³

Like corporations, estates have been denied privacy rights because they lack human sensibilities and cannot assert the human sensibilities of the dead that they represent.¹⁶⁴

Even if active corporations were properly ascribed privacy rights, as some courts have suggested,¹⁶⁵ that would not mean that it makes sense to extend such rights to deceased people or their estates. The question of whether deceased persons have privacy rights is more akin to the complex question of whether defunct or wound-down corporations have privacy rights.¹⁶⁶ Privacy rights ascription to the putative personhood of the deceased based on an analogy to corporate personhood therefore appears no more promising than the continuing personhood theory. We could create a novel, alternative legal fiction tied to dead people, but it would suffer from the same lack of ongoing input or direction to guide the furtherance of any identified interests. Ultimately, we find that the interests of the dead qua dead are a weak conceptual basis for ascribing postmortem privacy rights.

C. Interests of the Future-Decedent

To the extent courts and legislatures point to the interests of the deceased in well-being, dignity, and autonomy, what may in reality be at work are the interests of the living with regard to their future dead selves, and how that anticipated future treatment affects the living person’s own well-being, dignity, and autonomy.¹⁶⁷ We dub these interests those of the “future-decedents.”¹⁶⁸ The living may suffer as a result of imagined postmortem wrongs to our future dead selves. Some of these imaginings may be worth addressing on behalf of individuals through public policy, while others may be unavoidable, existential incidents of facing mortality. To the extent these interests are meritorious—which we think some are—they would need to be asserted on behalf of the deceased but not based on ongoing interests of the now dead. These interests are therefore intellectually distinct from interests entirely rooted in the dead.

1. Dignity and Autonomy of the Future-Decedent

The risk of postmortem information disclosures affects living, future-decedents in myriad ways. Limiting access to health and other personal information both in life and after death promotes interests in dignity and autonomy for the living, and may help preserve and protect fragile familial, social, and professional relationships. The possibility that postmortem disclosure of health records could reveal sensitive health conditions and genetic information creates disincentives for frankness and disclosure in the context of medical care for the living. The same is true for attorney–client and other testimonial and evidentiary privileges which promote sharing and honesty. Concerns over postmortem disclosure of financial information may also affect the future-decedent’s choices and sense of dignity while alive. Not all information about a future-decedent will fall into a “sensitive” category, nor will its disclosure qualify as highly offensive, nor will the privacy interests always be strong enough to overcome countervailing speech interests.¹⁶⁹ Nevertheless, protecting sensitive information after a person’s death justifies some postmortem protection.

A future-decedent’s peace of mind also may be negatively affected by uncertainty about what uses might be made of them after they die. Many of us care what happens to our bodily remains, tangible and intangible property, reputations, pending legal claims, social media accounts, and the attributes of our personalities, such as names, likenesses, and voices after our deaths. Comedian and actor Robin Williams notably barred use of his “name, voice, signature, photograph, [and] likeness” for twenty-five years after his death.¹⁷⁰ Knowing that a person’s identity attributes might be used postmortem could cause distress to the living and discourage them from expressing themselves.¹⁷¹ This is especially true as ever-improving AI can convincingly reanimate a person’s likeness and voice. The living understandably seek assurance that their preferences will be respected after their deaths. We recognize that there will be a variety of preferences of future-decedents as to how they would like their attributes used and, as we will discuss in Part III, we may wish to design a system that encourages the expression of such preferences and deference to them.

2. Incentives and Wealth of the Future-Decedent

Several courts have suggested that postmortem rights, particularly in the context of publicity rights and copyrights, will encourage the living to create works, develop performances, and invest in publicly valuable personalities. These courts hypothesize that a person’s knowledge that their creations and personalities will continue to generate value for heirs after death will motivate them while alive.¹⁷² The living can also sometimes monetize the predicted post-death value of their attributes. Postmortem rights of publicity, for example, are sometimes transferable prior to death.¹⁷³ Therefore, a living person could potentially sell those future rights for significant funds while they are alive.¹⁷⁴ Granting heirs postmortem control on behalf of the dead could provide reassurance to future-decedents that their wishes will be followed. It could do this in part by allowing heirs to determine whether and how decedents’ identities are resurrected, and whether unpublished manuscripts will see the light of day. Such reassurance could itself encourage the development of performances, works, and public personalities because people might feel safer in producing works and appearing in public, knowing that some control over their attributes would extend into the afterlife.¹⁷⁵

With that said, we share the skepticism of many courts, jurists, and scholars who doubt the significance of postmortem incentives, especially given that most commercially valuable deceased people generate significant wealth while alive and therefore already have incentives to develop their work, performances, and personalities.¹⁷⁶ As scholars have noted, it is unlikely that adding copyright terms much beyond twenty-five years matters, and few think that providing seventy years rather than fifty years postmortem copyright protection influences anyone’s choice to sit down and write a book or play, make a movie, or compose a song.¹⁷⁷ The same is likely true in the context of publicity rights because people do not need special incentives to manifest their name, likeness, or voice. There is little to no evidence documenting incentive effects for postmortem rights or suggesting an optimal scope or duration to achieve such effects.¹⁷⁸ Postmortem rights are more likely to produce incentives to reanimate and market dead people. Such incentives do not further the interests of future-decedents. Instead, these incentives should be part of a calculation of what rule with regard to postmortem privacy would best maximize social welfare, a question to which we will return in Section II.E.

3. Responsibilities of the Future-Decedent

To the extent that one’s postmortem attributes have monetary value, this could be understood as a mechanism for providing financial support after one’s death. Partners, spouses, parents, and other caregivers may feel particular responsibilities to care for their relations after their death (particularly if they have dependent and/or disabled spouses, partners, or children). It can bring significant psychological comfort to ensure provision for loved ones after we die. This objective explains not only why people buy life insurance, but also why the law facilitates the transfer of property and wealth at death, the creation of special needs trusts, and tax rules that allow surviving spouses to remain in their homes. Separate from generating postmortem wealth, future-decedents may also find solace in limiting uses of their identity or attributes after death to shield their loved ones from trauma.

Nevertheless, providing or amplifying the production of postmortem wealth is not without controversy. As we mentioned, those who are most likely to be able to generate significant postmortem wealth are likely those who have already accumulated substantial wealth during their lifetimes. As others have noted in the context of the estate tax system, promoting the creation and retention of intergenerational wealth can lead to significant income inequality over time.¹⁷⁹ Promoting postmortem wealth-production might diversify the winners in this intergenerational tournament of wealth accumulation but may otherwise amplify economic and wealth disparities.

D. Interests of the Relational-Living

The most frequent basis asserted to support postmortem privacy lies in the privacy interests of the living who share a close connection with the dead, usually a familial one¹⁸⁰—we term these stakeholders the “relational-living.” Courts have called rights for the relational-living a “relational right of privacy.”¹⁸¹ So what might be understood as protecting the privacy of the dead is often explained as solely addressing the interests of the living relatives. In some instances, courts appear to use this term as a dodge that allows them to further the interests of the dead without violating what they perceive as blackletter law prohibiting them from doing so. The relational-living approach also provides a mechanism for establishing advocates or stewards for the interests of the dead (or the now-dead future-decedents). At other times, reference to a relational right of privacy focuses on the privacy-related harms to the living arising out of the (mis)treatment of a decedent’s body, personal information, or other attributes.

We have identified at least four types of interests rooted in the relational-living that are distinct from those of the future-decedents articulated in the last section. The first of these interests focuses on preserving the memory of the deceased. The second interest of the relational-living is to protect the living relatives’ grieving process and is closely tied with limiting the severe emotional distress of the living. This interest is illustrated by the more robust privacy protections extended in the context of death images, human remains, and autopsy information, particularly when deaths were gruesome or violent. The third set of interests focuses on intrusion into the privacy of the living—such as when revealing information or using the identities of the deceased harms the living by revealing something about them. The final argument in favor of privacy rights connected to the relational-living is rooted in a theory of unjust enrichment—the contention is that if a deceased person’s identity can generate income, that income should flow to the relatives of the deceased rather than to strangers or the public. We will consider the legitimacy of each of these interests in turn.

We focus primarily on relatives because relatives often litigate these cases, and courts and legislatures have focused their analysis on close relatives, particularly spouses and children.¹⁸² Nevertheless, our concept of the relational-living is broad enough to encompass the interests of those who would not be recognized as “relatives” under the law, but who may be closer with a decedent than the relatives the law would vest with privacy-based rights emanating from a decedent. Failing to recognize this broader conception of the relational-living poses issues of equity and fairness and can contradict the preferences of decedents, as we will consider further in Part III.

1. Preserving the Memory and Reputation of the Deceased

Some cases call for protecting the “memory of the deceased” to address harms that flow to the living as a result of a reputational assault on a decedent. As the New York Court of Appeals noted as early as 1895 in Schuyler v. Curtis, there might be a privacy right for the living that could be

violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living, and not that of the dead, which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased.¹⁸³

Judge Van Brunt, concurring in the appellate division opinion in Schuyler, highlighted his view that public figures should not become “public property” when they die. Instead, “[t]he memory of the deceased belongs to the surviving relatives and friends, and such relatives have a right to see that that which would not have been permitted in respect to the deceased when living shall not be done with impunity when the subject has become incapable of protecting himself.”¹⁸⁴

Despite this rhetoric, in most instances, claims to protect the memory and reputation of the dead fail, with courts concluding that surviving plaintiffs lack standing to assert the reputational and dignitary harms of the decedent.¹⁸⁵ So unless claimants can claim direct harm to themselves, these cases usually founder. Protecting the memory and reputation of the dead is a weaker basis to extend postmortem privacy because the dead have no ongoing feelings or reputation to harm or offend (as discussed above), and merely sullying the reputation of a deceased loved one usually does not rise to the level of a cognizable privacy violation to the living. Nevertheless, in some extreme instances, recognition of such an interest may be appropriate.¹⁸⁶ The possibility of reanimating dead people using current technology, including generative AI, could rise to this level. For example, the reanimation of a decedent in pornographic videos or saying hateful things they never said could be so extreme and highly offensive that a claim to have disturbed the memory of the dead might be valid as a prima facie matter.

We recognize that even if legitimate, the expansive protections of modern First Amendment jurisprudence will mean that the interests of preserving the memory and reputation of the dead will most often falter against countervailing speech interests. The First Amendment today strongly protects depictions of deceased persons in ways distinct from how free speech concerns were analyzed in the late nineteenth century, and no one, including the living, is entitled to complete control over how they are depicted or remembered. Still, in extreme contexts, privacy concerns, even postmortem, may prevail over First Amendment concerns in the same way that they do in the context of privacy claims arising out of showing living people engaging in sex or their intimate body parts.¹⁸⁷

2. Protecting the Grieving Process and Integrity of the Deceased

Although efforts to protect the memory and reputation of the dead usually fail, courts are more willing to allow relational-privacy claims in the context of corpse integrity, funerals, and death images. Courts deem these claims to presumptively cause privacy-based injuries to the living.¹⁸⁸ The grieving process and rituals surrounding a loved one’s death are considered private spaces, and intrusion into them is understood to be highly likely to cause emotional distress to survivors.¹⁸⁹ Sometimes these interests are asserted in the context of claims for intentional or negligent infliction of emotional distress.¹⁹⁰ But courts have also allowed such claims on the basis of the “right to privacy of a grieving family member;” to protect the “right to . . . dignified treatment of their loved one’s bodies;” the right to “privately grieve;” to “make decisions regarding the disposition of the body;” and the right to “non-interference with a family’s remembrance of a deceased loved one.”¹⁹¹ Courts have viewed such a right of “non-interference” as “so rooted in our traditions that publication of death photos is a deprivation under the Fourteenth Amendment.”¹⁹² Courts have found a number of different ways to protect this interest, including affording the relatives a “property interest in the bodies of the deceased relatives.”¹⁹³

Protection of the grieving process explains the routine extension of privacy-based claims to surviving relatives in the context of the unauthorized circulation of death images.¹⁹⁴ As discussed in Part I, numerous FOIA cases have rejected requests for documents because their release would intrude on the privacy of a sacred metaphorical space for family members to grieve. In Favish, the Supreme Court noted that “[f]amily 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.”¹⁹⁵ The Ninth Circuit observed that such “respect[]” for “family members’ privacy in death images” is “long-standing.”¹⁹⁶ The ability to stop disclosure of such “death images flows from the well-established substantive due process right to family integrity. . . . [T]he Constitution protects a parent’s right to control the physical remains, memory and images of a deceased child against unwarranted public exploitation by the government.”¹⁹⁷ “This privacy right belongs, not to the deceased, but to the survivors . . . .”¹⁹⁸

The primacy of death images in successful privacy cases stems from the likelihood of these images causing severe emotional distress to grieving families.¹⁹⁹ Unsurprisingly, several states have passed laws prohibiting the release of images of a deceased person’s body.²⁰⁰ The legislative history behind California’s provisions emphasizes its protection of “the family of a deceased person” and the family’s “right of privacy to limit reproduction of gruesome autopsy photographs.”²⁰¹

Similarly, many states have passed laws protecting funerals and mourners from intrusions into the sacred space of a burial.²⁰² As the Eighth Circuit highlights “[m]ourners, because of their vulnerable physical and emotional conditions, have a privacy right not to be intruded upon during their time of grief.”²⁰³ Although the First Amendment has placed significant limits on these privacy rights, the interests of mourners are well established.²⁰⁴ Protection of the grieving process extends into the future by protecting burial sites, the bodies of deceased ones, and meaningful communication surrounding the death of loved ones, including suicide notes.²⁰⁵ Privacy for the grieving process may also justify some postmortem publicity rights to prevent the commercialization and reanimation of a deceased loved one in ways that would be highly offensive and particularly likely to cause severe emotional distress to relatives.

Protecting the private space of grieving for the relational-living is a legitimate justification for extending postmortem rights tied to or emanating from the dead. It is possible that the negligent and intentional infliction of emotional distress torts could also support such claims, but the harm also sounds a privacy note and has been understood as a longstanding privacy-based wrong.²⁰⁶

3. Protecting the Privacy of Living Relations

Information about the dead can often reveal private information about the living. The protection of a deceased person’s genetic data also protects the data of genetically related family members who might suffer genetic, and other, discrimination if such information were revealed. For example, the disclosure that a deceased woman had the BRCA1 and BRCA2 genes associated with an elevated risk of breast and ovarian cancer could lead to a reasonable inference that some of her children and grandchildren have the genes as well, since each child has a 50 percent chance of inheriting them, according to the National Cancer Institute.²⁰⁷ The living may also be negatively impacted by other revelations about deceased relatives. For example, the deceased’s health and counseling records may include unconfirmed allegations of violence and abuse committed by an identifiable living person. Such revelations can cause both reputational and emotional harm for the survivors. Limits on postmortem disclosure of tax and social security data also protect a decedent’s family and heirs’ financial privacy.

4. Unjust Enrichment Concerns

Postmortem publicity rights have often been justified on the basis that if wealth is to be generated by the use of a deceased person’s identity, the families of that person, rather than the public or third parties, should be the ones to financially benefit. The Georgia Supreme Court in Martin Luther King, Jr. Center for Social Change v. American Heritage noted that a contrary conclusion would “seriously impair, if not destroy, the value of the right of continued commercial use” upon death.²⁰⁸ The court thought it unfair that those other than the chosen heirs “should be the beneficiaries of the celebrity’s death.”²⁰⁹

Some courts have justified extending a postmortem right of publicity on the grounds of rewarding the labor of the underlying identity-holder, while others simply conclude that if there is commercial value in deceased persons, that value should flow to their relatives. This was California Chief Justice Bird’s view; she concluded that the “financial benefits of [a person’s] labor should go to the celebrity’s heirs,” rather than to benefit “advertisers.”²¹⁰ Notably, Chief Justice Bird had a narrow view of a postmortem right, limited to uses on merchandise or in advertising; she thought other uses of a deceased person’s identity, for example, in a biographical film, were not instances of unjust enrichment.²¹¹

Other jurists have concluded that postmortem rights of publicity should be extended to avoid a “windfall” to merchandisers and advertisers in the aftermath of a celebrity’s death.²¹² This logic is hard to follow, as there would be no “windfalls” in the absence of exclusive rights. Without postmortem rights, access to the attributes of the dead would be broadly available to all, like a copyrighted work that enters the public domain. This would mean that no single person or entity would reap a windfall from using a person’s identity after death. And, notably, allowing broad public access would not prevent heirs from using trademark and unfair competition laws to profit from selling and enforcing rights to “authorized” or “official” merchandise sponsored by the estate.²¹³

Other jurists and scholars have rejected the extension of postmortem publicity rights, questioning why the heirs of dead celebrities should receive a “windfall.” California Supreme Court Justice Stanley Mosk articulated this view, observing that these “substantial rewards [were] neither earned nor otherwise deserve[d].”²¹⁴ Justice Mosk also warned of the costs of “such a bonanza” granted to heirs, observing that such rights would “ill serve[] the principles of free expression and free enterprise.”²¹⁵ A number of other jurists have agreed.²¹⁶ Scholars have similarly questioned why heirs should reap the financial rewards of the dead, particularly in light of the significant role the public and other creative contributors play in producing the most commercially valuable personalities.²¹⁷ Scholars also have strongly criticized the claim that legal rights should arise simply because something has market value, a determination that itself may turn on whether legal rights are extended in the first place.²¹⁸

Another possible basis for extending postmortem privacy rights on an unjust enrichment theory, at least in some contexts, is the history and ongoing perpetuation of commodity racism in which some profited from the postmortem exploitation and denigration of particular racial groups.²¹⁹ For example, African Americans have long been exploited as public curiosities, a trend dating at least to the lynching era, in which Black people hanging on nooses from trees were photographed and these images were then sold as collectable postcards.²²⁰ Recently, Black men’s deaths and corpses (such as, George Floyd, Eric Garner, and Ahmaud Arbery), were captured and disseminated with cell phone cameras and body cams. As Latria Graham has observed: “There is a direct line between historical exploitation and the ongoing commercialization of and profiting from images of dead Black people, over which their descendants often have little control, few claims, and few rights.”²²¹ This historical context suggests the importance of providing heirs equal access to postmortem privacy in relation to their deceased ancestors.

Postmortem privacy could provide some opportunities to limit the most extreme, cruel, and racist images and memes that have arisen in the aftermath of a person’s death.²²² For example, Vanessa Bryant’s successful lawsuit in the aftermath of the helicopter crash that killed her husband and their daughter established a strong precedent that may deter others from souvenir hunting at death scenes and seeking to profit off the death images of others’ loved ones.²²³

Given these many competing considerations, and the reality that denying postmortem privacy rights would not stop the commercialization or exploitation of the dead, it may make sense to vest, for some limited period, exclusive rights to commercialize the dead in the hands of those who can best protect the relational-livings’ grieving process and who are most likely to further the preferences of the now-dead, future-decedents, including their preference to not be commercialized after death.

E. Public Welfare Interests and Social Norms

A number of scholars have highlighted the role that social norms, practices, and context play in forming privacy laws.²²⁴ This understanding of privacy law applies with equal measure when dead people sit at the center of privacy law. When courts consider whether to extend postmortem privacy, they often look to community norms and whether the use of a dead person’s image, name, identity, or personal information would be thought inappropriate. Such an evaluation often turns on what reasonable people would find highly offensive. The role of custom and norms in determining liability in postmortem privacy cases is particularly evident in the context of the treatment of human remains and death images. The Supreme Court explained in Favish that rejection of a FOIA request to release pictures of a decedent’s body was supported by a “well-established cultural tradition acknowledging a family’s control over the body and death images of the deceased [that] has long been recognized at common law.”²²⁵ The bar on registering trademarks that refer to real people (dead or living) has also been justified on the basis that such uses violate community norms and are “outrages of the sensibilities of the American people.”²²⁶

Importantly, community norms may not only lead to the protection of the privacy most people want but can also lead to the imposition of privacy some people do not want. Community norms regarding the circulation of death images may strongly oppose human taxidermy or wide distribution of gruesome images of self-immolation, even when it was the fervent desire of the deceased that such images be widely publicized to promote a cause they deemed worthy.²²⁷ By disallowing sought-out publicity in some of these instances, authorities seek to protect the broad dignity of the deceased, as well as the public, from the harm of witnessing gruesome public acts, such as self-immolation.²²⁸ The imposition of such community standards may also discourage future self-destructive acts by others. The postmortem privacy interests of the future-decedent, relational-living, and society more broadly may clash in such circumstances, and different communities will have differing values. We will discuss how to address such conflicts further in Part III.

Separate from social norms, courts have contended that protecting postmortem privacy rights, particularly in the context of limiting unauthorized uses of a deceased person’s identity, encourages the living to better develop their performances and personalities in ways that benefit public welfare.²²⁹ As we have discussed, this conclusion is highly contested and no empirical evidence has thus far supported the claim,²³⁰ but it is frequently raised as a basis to extend postmortem privacy rights.²³¹ Extending postmortem publicity rights might encourage heirs to capitalize (financially and creatively) on dead people. Consider recent endeavors like the stadium tour featuring the deceased Roy Orbison’s hologram or the Michael Jackson show in Las Vegas that employs a reanimated hologram of Jackson.²³² Some might see these as social gains, but we could also assess them as net social losses. Members of society could potentially be harmed by witnessing the commodification and reanimation of the dead,²³³ and these dead performers could substitute for the labor of living performers.

Not only might privacy rights for the dead substitute for the labor of the living, but such an expansion of postmortem rights may limit the ability to refer to or depict public figures, whether in creative works, memorials, or news reporting. These communicative losses affect the calculation of whether protecting privacy postmortem furthers or reduces social welfare. As the Sixth Circuit suggested, in rejecting the extension of exclusive rights over Elvis Presley’s identity into the afterlife, “[t]he memory, name and pictures of famous individuals should be regarded as a common asset to be shared, an economic opportunity available in the free market system.”²³⁴

III. Contours of Postmortem Privacy

In Part I, we discredited the dogmatic no-privacy-rights-for-the-dead claims by pointing out the many areas of the law that recognize postmortem rights. In Part II, we identified possible protectable interests that could justify some form of a prima facie postmortem privacy right. We concluded that the most convincing reasons for providing postmortem privacy rights rest on the interests of the living (including future-decedents). Yet, making the case for the extension of specific postmortem rights of privacy ultimately requires more than a simple identification of interests. It requires selecting among and balancing an array of competing interests of the living and the dead. In this Part, we suggest some possible boundaries and guideposts for postmortem privacy. We begin by considering conflicts among the interests at stake, then turn to questions of who can bring postmortem privacy claims, and the appropriate duration of such a right. Finally, we consider some necessary limits on the right to provide space for public grieving and commemoration, as well as the broader freedom to speak about and depict the dead.

A. Mediating Conflicting Interests

At the outset, it is important to acknowledge that the interests of the dead, future-decedents, the relational-living, and the general public identified in Part II will sometimes come into conflict with one another. These conflicts raise the issue of how to mediate or prioritize these competing interests. Questions of how to prioritize the interests of the dead are not unique to postmortem privacy. As we noted in Part I, privacy is not the only area in which the law considers the interests of the dead. Other bodies of law, particularly wills, trusts, and estate law, as well as property law more broadly, have long balanced the competing interests of the deceased with heirs and society.²³⁵

Wills and trusts law prioritizes testamentary freedom in the disposition of property and funeral and burial choices over the competing interests of heirs and even the efficient use of property by the living.²³⁶ Although some limits exist, the dead have broad power to dictate to the living under these bodies of law.²³⁷ Even property rules like the rule against perpetuities that have historically restricted dead-hand control of property are falling into desuetude, giving increasing control to the property determinations of the long dead.²³⁸ In this larger project on postmortem privacy we cannot fully interrogate the breadth of the doctrine and scholarship in these other areas of the law, but we want to highlight that the law already has experience mediating conflicts between the expressed interests of the dead and those of the living. These bodies of law give some guidance and precedents that support allowing living persons to determine how their privacy interests, including management of their attributes, should be managed after death.

As is true in testamentary law, there will be many instances in which the (now-dead) future-decedents’ interests in postmortem privacy should take precedence over the interests of the relational-living. In fact, in the context of postmortem privacy there are reasons for even greater deference to decedents when conflicts arise. For example, significant concerns about the efficient use or waste of physical property don’t apply to postmortem privacy since there is no tangible property at issue. Although some have suggested that extending postmortem publicity rights will increase the efficient use of dead celebrities and maximize their value, incentivizing the commercialization of the dead is not a convincing basis for postmortem privacy and can even work against the interests of such a right.²³⁹ Additionally, postmortem privacy is uniquely tied to the personhood of the decedent in ways that make traditional property-oriented analysis about dead-hand control inapt.²⁴⁰

Determining when a future-decedent’s postmortem interests should yield to those of the relational-living or of society more broadly will differ depending on context. For example, we may want to defer to the relational-living in the context of grieving and revelations that impact their own information privacy but defer to the (now-dead) future-decedents for choices about postmortem commercialization and whether their data is retained or erased. The relational-living may stand to financially profit from commercializing and exploiting their dead relatives, but their economic motivations should yield to the preferences of the decedent.

B. Boundaries

Postmortem privacy must be appropriately shaped to further and mediate among the legitimate interests we identified in Part II, as well as to prevent it from unduly restricting the living. We highlight here some key guideposts for doing so. In particular, we assess the appropriate boundaries of postmortem privacy with regard to who should be eligible to assert such rights, what evidentiary support should be required to represent the interests of the deceased, and how long such rights should persist.

1. Eligibility

Qualifications for the Dead. Determining eligibility for postmortem privacy rights presents one initial question: Should all decedents have such rights, or only some? Even though many states have now adopted (mostly by statute) postmortem publicity rights, such rights usually do not extend to everyone who dies. Some states that recognize a postmortem right of publicity limit it to those who die with a commercially valuable identity. For example, California and New York’s postmortem statutes limit the right to claims based on “deceased personalities,” who are defined as those whose identity has “commercial value” at the time of their death.²⁴¹ New York’s digital replica provision limits such claims only to “ ‘deceased performer[s]’ . . . who, for gain or livelihood . . . regularly engaged in acting, singing, dancing, or playing a musical instrument.”²⁴² Pennsylvania’s statutory provision suggests that claims can only arise in the context of deceased persons if those persons actively commercialized their identities while alive.²⁴³

No such limits are justified. Postmortem privacy, including publicity rights, should be extended to all. The cross-section of people (and their heirs) who are protected under these “deceased personality” laws are the most likely to already have numerous other avenues to protect against unauthorized uses of their attributes after death. Such decedents’ heirs will likely have access to copyright, trademark, and unfair competition laws. The current trajectory of extending postmortem rights only to those already blessed with market value, wealth, and an array of legal resources is unsettling. This in part explains why the Georgia Supreme Court in Martin Luther King, Jr. Center for Social Change did not think commercial exploitation during one’s lifetime was required for publicity rights to survive death.²⁴⁴ The court observed that there were good reasons a person might not want to exploit their identity during their lifetime and concluded that this should not weigh against them in the context of extending postmortem protections to limit unauthorized exploitation.²⁴⁵ Nor should one have to be a well-known public figure like civil rights icon Martin Luther King, Jr. to have some degree of postmortem protection.

Although those most likely to be commercially exploited after death are those who were well-known and marketable while alive, evolving technology can create digital replicas of any person and have these replicas act, sing, dance, or play musical instruments. If we take seriously a commitment to equality and to the many nonmonetary bases for extending postmortem privacy protections, then the pre-death commercial value requirements of deceased personality laws seem wrongheaded and perhaps even backwards. While benefitting mega-celebrities, these narrow postmortem provisions create obvious distributive inequities. We do not discern a convincing justification for disfavoring those without commercial value for identity protection, whether during or after their lives; postmortem privacy should be available on an equal opportunity basis. Those who die without commercial value merit peace of mind while alive, their relatives deserve space to mourn, and society may be better off without their exploitation. To support such postmortem equity, legislators should address inequities in damages recovery that can make it difficult for heirs of those who died without commercial value to hire attorneys to enforce their rights.²⁴⁶ One way to address this is to include statutory damages and fee-shifting provisions in legislation addressing postmortem privacy rights.²⁴⁷

Qualifications for the Relational-Living. A second question with regard to eligibility is who should be able to assert their own interests in relation to the dead? The relational interests that we identify (including those rooted in unjust enrichment) are limited to natural persons who are either legal heirs or can establish a direct personal relationship to the deceased. Simply put, a person who was not known by or close with the decedent should generally not be able to assert their own relational interests after a person’s death. One exception to this limitation is if a natural person’s own information privacy is implicated by the release of information of the deceased, for example in the context of genetic data.²⁴⁸ To avoid the problem of those with little stake in the decedent trying to gain economic control of a person’s identity postmortem, one could limit relational claims to nonmonetary interests, or greatly limit with whom such claims can vest, or both. Although we have reservations about privileging only legally-recognized relatives to determine to whom relational privacy should extend,²⁴⁹ it may be appropriate as a default rule to limit relational claims to spouses, life partners, and children, particularly if the scope of relational claims is broadly construed to include unjust enrichment claims.

2. Representing the Dead

Another question that looms large is who is entitled to speak for the dead.²⁵⁰ Family members, designated heirs, and owners or licensees of intellectual property all potentially compete for legal standing to assert postmortem claims on behalf of the interests of the now-dead future-decedent. To avoid the misrepresentation and unwanted exploitation of the dead, there must be meaningful limits on who can assert the interests of the dead and requirements for establishing the preferences of the (now-dead) future-decedent. A myopic focus on legally-recognized relatives can problematically empower those with no real stake in the deceased’s privacy and leave unrepresented those without living or locatable relatives. Individuals who are family members affiliated by blood, adoption, or marriage, but lack an actual relationship with the deceased may seek to gain control over a dead person’s attributes for their own personal financial profit. This comes at the expense of the public and sometimes of persons who were emotionally closer to the deceased or more likely to faithfully represent the interests of the deceased, or both. Similarly, allowing unrelated companies to step in to “represent” the dead also fails to serve the interests of the deceased or society. We therefore consider here who should qualify as an advocate for the deceased, how they can demonstrate the deceased’s preferences, and what to do if there are not adequate representatives to do so.

The Problem of Misrepresentation. Problems of posthumous misrepresentation have been with us since common law courts first recognized privacy rights in the late nineteenth century. In Schuyler v. Curtis, the plaintiff (the stepson and nephew of the late Mary M. Hamilton Schuyler) objected on privacy grounds to a proposed statue honoring Hamilton Schuyler’s philanthropic work, which was to be erected by the Women’s Memorial Fund at the World Fair’s Columbian Exposition of 1893. The statue was to be placed next to one of Susan B. Anthony, honoring the latter’s work in the women’s suffrage movement.²⁵¹ The plaintiff claimed that his stepmother, “Mrs. Schuyler,” had been a private, retiring woman who would have objected to being publicly displayed next to a women’s rights activist.²⁵² Yet, during cross-examination, the plaintiff appeared ignorant of his stepmother’s remarkable work in the public sphere, disdaining her as no “George Washington,” and not deserving of a statue in her honor.²⁵³ There are ample reasons to doubt his assessment. Hamilton Schuyler founded the School of Design for Women to promote avenues for women to become professional artists and may well have supported a woman’s right to vote. Tellingly, the witnesses for the defendants, who had personal relationships with “Hamilton,” used her maiden name, which she may have preferred, and suggested that Hamilton would have very much appreciated the honor being bestowed upon her. They argued that Hamilton “belongs to ALL who live after her,” and should not be controlled in the afterlife by her dismissive and controlling nephew/stepson.²⁵⁴ The Court of Appeals of New York held for the defendants—a holding that highlights the contemporary view that surviving relatives are not “entitled to elevate their view of the departed over all others, thereby preventing the public from entertaining a different recollection.”²⁵⁵ The Schuyler case provides an important warning to protect against the weaponization of postmortem privacy, particularly in ways that might exacerbate existing inequities, including those along gender lines.²⁵⁶

More recently, when the recording artist Prince died unexpectedly and without a will, relatives of his, with whom he was not close at death, gained possession of his estate. They have already made choices in opposition to his stated positions on how he wanted his music and affairs managed.²⁵⁷ Even when close relatives hold rights, they may disagree with one another, have varying degrees of connection to the deceased, and ultimately may not be the best representatives. Notably, an intrafamily feud arose when Martin Luther King, Jr.’s voice and words from his famous “Drum Major Instinct” sermon were used in a Super Bowl advertisement for a Dodge truck. Outrage followed the exploitation of this powerful civil rights leader and the use of his sermon to sell trucks.²⁵⁸ The King Center, founded by his widow, Coretta Scott King, and his daughter, Bernice King, both objected to the use, but the use had been lawfully licensed by the King Estate (which until recently was primarily controlled by King’s sons).²⁵⁹

Allowing for unrelated people or entities to control a decedent’s postmortem privacy can be even worse. Consider the example of Bettie Page.²⁶⁰ As a young adult, Page was a famous “pin-up” girl, model and actress,²⁶¹ onto whom “the repressed denizens of postwar America projected . . . their most lurid fantasies.”²⁶² In her mid-twenties, Page, who had been sexually assaulted as a child and as an adult,²⁶³ appeared in commercially distributed sexy, semi-nude, nude, and bondage-fantasy photos and films. Page left the public spotlight in 1957 to devote herself to religious causes. In her later years, she attempted to suppress the recirculation of the sex-bondage films she had made as a young woman but failed.²⁶⁴ This lack of agency has now followed her into the afterlife. In death, an unrelated corporation owns and controls her name, likeness, and voice, and markets Page in the context of sex toys and other sex-related items.²⁶⁵ Her postmortem depiction deviates from her actual persona later in life and stands in stark contrast to her expressed preferences. The transfer of Page’s rights also highlights the risk of predatory behavior toward aging celebrities if postmortem privacy is not thoughtfully limited. Page was hospitalized numerous times for severe mental illness and later in life suffered a stroke.²⁶⁶ This raises questions about her capacity to understand and approve such a transfer, but also more broadly highlights the danger of setting up a system in which unrelated for-profit companies are incentivized to own and commercialize the dead.

Limiting Representatives and Requiring Evidentiary Support. The contours of postmortem privacy should be designed with an awareness of the dangers of such misrepresentations and the weaponization of its rights. To further the legitimacy of claims asserting the interests of the now-dead future-decedent, courts should require some evidentiary support for the decedent’s preferences. In the absence of written expressed preferences, heirs could be required to prove the decedents’ likely wishes and sensibilities by clear and convincing evidence rather than being utterly free to shape self-serving narratives of the deceased.²⁶⁷

Such concerns also support our view that there should be significant limits placed on who can hold and control such privacy rights postmortem. The relational-livings’ efforts to control the narrative about their deceased relations or to profit from their identities must be limited by the known interests of the future-decedents and by societal interests and norms around the appropriate treatment of the dead. Furthermore, as discussed in the last section, unrelated entities should not be able to wield relational interests, including claims to the financial value of deceased individuals on the basis of an unjust enrichment logic.

Such unrelated entities are also not likely to further the interests of the decedents, as the Bettie Page example demonstrates. To the extent such entities assert rights on behalf of the deceased, the scope of their claims should be quite limited, focused on protecting the interests of the future-decedents, rather than on generating massive profits for themselves at the expense of the public. We have significant concerns about setting up a postmortem privacy regime that creates or boosts a market in dead performers rather than one that limits commercial exploitation of the dead. Unfortunately, this worst-case version of postmortem rights is the one currently being thoughtlessly built. This has largely occurred because of the recent proliferation of postmortem publicity statutes that focus primarily on market concerns and allow unfettered transferability of rights, including to entities wholly unrelated to the deceased. The creation of such an exclusive regime of commercialization could encourage (as we have already seen) third-party corporations to buy aging celebrities’ identities to generate enormous corporate wealth rather than wealth for family members.²⁶⁸ Such an incentive to shift resources to promoting reanimated performances and appearances by dead celebrities could also displace work for living performers. In such instances, a postmortem right may not further the interests of the relational-living, the future-decedents, or society.

Without limits, providing postmortem rights of publicity does not guarantee income to family or friends and likely conflicts with the ability of close relatives to limit the commercialization and reanimation of the decedent after their death. Any postmortem right therefore should limit with whom it vests so that unrelated individuals and corporations are not incentivized to commercialize the dead or to prey on aging celebrities who may be suffering from cognitive decline or mental health challenges.²⁶⁹ This analysis also suggests there should be limits on overly broad licensing by heirs to third parties.²⁷⁰ Additionally, it further supports our view that postmortem commercialization should be tied to the future-decedent’s genuine preferences rather than to the interests of the relational-living. Furthering these goals may also require excluding postmortem rights from estate taxes.²⁷¹

Estate Planning and Stewards for Postmortem Privacy. Broader use of estate planning would further the interests of the future-decedents in exercising control over their identities after death. A plausible approach would be to create something similar to a “living will” for identity attributes and personal data, which would specify parameters on the use of one’s name, likeness, and voice after death.²⁷² Such preferences could also be part of a person’s more formal will. Decedents should be able to choose who should represent their postmortem interests. For example, a close friend or long-time employee could be designated to protect a decedent’s interests.²⁷³

In the absence of an affirmative designation of a personal representative, there are reasons to default to following intestacy law as a starting point to determine, who, if anyone, should be the steward of postmortem privacy on behalf of a future-decedent’s interests. Absent such representatives or known preferences, postmortem privacy rights tied to the decedent’s interests may need to be limited to those supported by broad societal agreement, such as treating burial sites and remains with dignity. Nevertheless, to address concerns about potential inequities in the provision of postmortem privacy to those who may have died without locatable or living relatives, there are a number of steps that could be taken. In some instances, court-appointed stewards may be appropriate, similar to how courts handle the interests of those who are incompetent through court-appointed conservators or litigation involving public trusts. Fred Smith Jr., has argued that equity concerns may demand such an alternative system, especially for people and communities who may not have surviving or traceable relatives, such as deceased victims of genocide or enslavement.²⁷⁴ We could also consider some default rules that do not require active representation of the dead, for example, limits on the release of health information or the digital reanimation of the dead for a set period of time after death without regard to whether a deceased person has a living relative or designated advocate.²⁷⁵

3. Duration

Ascribing postmortem privacy rights creates a challenge of determining their “expiration” date.²⁷⁶ It is both impractical and unjustifiable to permit such rights to last forever.²⁷⁷ Yet, there is great complexity in establishing non-arbitrary durational terms. We have observed that across the law, existing postmortem privacy rights extend for wildly varying durations. In the context of federal sectoral privacy laws, postmortem rights extend fifty years under HIPAA, potentially as long as seventy-two years under Census regulations, and the lifetime of a deceased minor’s parents under FERPA.²⁷⁸ To the extent ECPA Title II, the Stored Communications Act, extends rights postmortem, it sets no express time limits on the obligation of service providers to restrict disclosures.²⁷⁹ In the context of publicity rights, the postmortem duration varies widely from state to state—from zero to indefinitely, with many different terms in between.²⁸⁰ Common law privacy claims have been evaluated on a case-by-case basis without particular durational markers, seemingly only bounded by statutes of limitation.

This variability could be a result of the persistence of the misleading blackletter law claim that privacy ceases with death. Such a conclusion has obstructed careful consideration of appropriate durational boundaries for postmortem privacy. But such variation also reflects, as we developed in Part II, the variety of interests that justify postmortem privacy rights. These distinct interests suggest differing durations of protection. Accordingly, some variability in durational terms for postmortem privacy is appropriate and unsurprising. Nevertheless, the variations we have today do not track these interests, nor do they seem to be the result of careful deliberation. Instead, they seem to be a result of randomness,²⁸¹ grasping at analogies to other areas of the law that may not be apt,²⁸² or simply of compromise in the face of uncertainty and lack of guidance about how to set durations for such postmortem privacy concerns.²⁸³

Recognizing the challenge of determining an appropriate duration for postmortem privacy, many judges have suggested that legislatures should decide the issue.²⁸⁴ California Supreme Court Justice Stanley Mosk so concluded in his concurrence in Lugosi v. Universal Pictures, pointing to the absurdity of courts trying to figure out durational dividing lines in the context of deceased public figures: “May the descendants of George Washington sue the Secretary of the Treasury for placing his likeness on the dollar bill? . . . May the descendants of James and Dolly Madison recover for the commercialization of Dolly Madison confections?”²⁸⁵ Regardless of whether the determination of duration is made by legislators or judges, guidance is desperately needed. The current ad hoc duration-setting, case-by-case decisionmaking, and resort to the “visceral,”²⁸⁶ needs to be replaced with a more systematized approach to duration-setting. What follows is our effort to provide such a starting point for thinking about postmortem duration going forward. We begin by distinguishing several possible approaches to duration-setting.

Durational Idealism. One approach, durational idealism, would seek to minimize the arbitrariness of duration-setting by offering as the grounds for a choice of duration a discrete ideal or set of ideals, such as respect for human dignity, autonomy, flourishing, or maximization of overall social welfare. An obvious weakness of this approach is that ethical and human rights ideals do not easily translate into specific duration-setting recommendations for adoption by courts and legislators. A welfare-maximizing approach would require not only answers to unanswered and likely unanswerable empirical questions, but would also give short-shrift to the many unquantifiable, yet welfare-maximizing, aspects of recognizing postmortem privacy (as well as its costs).

Durational Generationalism. Another approach, perhaps a more promising one, is durational generationalism, which links duration-setting to average life expectancies of the relational-living. This approach is premised on the view that the weight of interests related to the dead inevitably and predictably decreases over time, as those with direct relationships with, and memories of, the decedent die as well. As Chief Justice Bird noted in Lugosi: “[W]ith the passage of time, an individual’s identity is woven into the fabric of history, as a heroic or obscure character of the past. In that sense, the events and measure of his life are in the public domain and are questionably placed in the control of a particular descendant.”²⁸⁷ The emotional distress likely to flow from the misuse of a deceased loved one also likely dissipates with the passage of time and the death of those closest to and known to the decedent. Property law’s rule against perpetuities was initially linked to such an approach, and to the lifetime of those alive when the decedent was alive, making it more likely that they were known to, and connected with, the decedent.²⁸⁸ Copyright law’s duration also appears linked to such a generational approach: Providing rights for the life of the author plus seventy years (previously fifty) was thought to provide financial support to one generation of heirs but not beyond.²⁸⁹

This one-generation approach also reflects an assessment that this first generation is the one most likely to know and protect the noneconomic interests of the deceased.²⁹⁰ Mark Bartholomew has recently argued that such a generational approach should be used to set the duration for his proposed postmortem digital performance right. He defines a generation not by the life of those known to the decedent but by a generational shift (say from Gen Xers to Millennials), which he pegs as a “twenty-year” period.²⁹¹

One challenge that arises with durational generationalism is how to define generations, given differing approaches and the variability of life spans and reproductive patterns across individuals, cultures, and races. Additionally, pegging rights to generations only begs the question of whether and when it is appropriate to extend postmortem privacy to one or many generations. And for some interests a generational approach will produce postmortem terms that, as we will discuss, are too long or too short.

Durational Pragmatism. The shortcomings of both the idealist and the generational approaches suggest to us that a third approach, durational pragmatism, may be the superior mechanism for setting durations for postmortem privacy claims. This would seek to minimize the arbitrariness of duration-setting by linking a proposed duration to the presumed legitimate objectives of the posthumous rights in question, such as incentivizing openness with attorneys and physicians while alive; providing future-decedents peace of mind; affording intimates an adequate opportunity for grieving and mourning; or extending a limited duration of exclusive use of the attributes of the deceased. Although in some instances this paradigm might suggest the appropriateness of generationalism, in other contexts it will not. Durational pragmatism explains why variation in duration may be appropriate and can also incorporate countervailing interests into terms for postmortem privacy. Privacy-related interests in protecting the peace of mind and reputation of both future-decedents and the relational-living, as well as norms of respecting the dead and their remains, are strong but not absolute. They can be outweighed, for example, by society’s legitimate interests in allowing people to comment on the lives of others. This interest in access will grow over time.²⁹² Durational pragmatism can account for such shifts. This pragmatic approach prioritizes the protection of substantive interests over setting a single duration for all contexts, while still appreciating the virtues of clarity and reliability. Some other countries have adopted such an approach tied to the interests at stake. Germany, for example, extends a shorter duration of postmortem protection for commercial interests (limited to no more than ten years) than for dignity-based interests (limited to no more than thirty years). These terms can be further diminished based on a series of factors including the “nature and intensity of the infringement” and the reduced “need for protection after death [which] decreases with the increasing passage of time” and as “the living generation’s memory of the decedent fades.”²⁹³

We consider here only a few examples of the way such a pragmatic approach could help guide determinations of the duration of postmortem privacy in different contexts. Durational pragmatism suggests that if the focus is on the protection of the relational-living and their grieving period, we could consider evidence-based medical, psychological, and cultural understandings of grief.²⁹⁴ Although expert opinions and cultural practices differ,²⁹⁵ the science of grieving observes that in most cases grief subsides after a year, even though lasting effects of such losses are particularly great for surviving spouses and persist beyond one year.²⁹⁶ We note, however, that even if the intense period of grieving passes, unauthorized uses of a deceased loved one may cause great emotional distress in ways that the law may wish to address beyond the short duration of a year or two. Still, the shorter duration could be a starting marker upon which extensions require further justification.

In contrast to the relatively short period for protecting relational privacy interests based on grieving, protecting human remains and the integrity of burial suggests a lengthier term is required. Postmortem privacy rights related to burial and remains could potentially persist for centuries, particularly in contexts where the deceased were not initially buried respectfully.²⁹⁷ Other postmortem privacy interests suggest different terms. In the context of protecting the information privacy of the relational-living, it may make sense for such protections to persist for at least the lifetime of those whose sensitive information is revealed by the information related to the decedent.

With regard to the protection of the attributes of the dead, such as their voices and likenesses, consideration of duration has been muddied by confusion about the objectives of these laws. In particular, the mistaken analogizing of them to copyright laws and the misguided focus on commercial profit-making has led legislatures and jurists astray. Any duration for such postmortem rights should be focused on enabling limits on commercialization, rather than promoting or even forcing such commercialization. As we demonstrated in Part II, the interest in the relational-living financially profiting from the dead is a weak basis to extend postmortem privacy. It therefore makes more sense as durational pragmatists to peg the duration of rights to control the use of postmortem attributes to those which support the interests of the future-decedent, the relational-living in grieving and their own informational privacy, and societal needs and norms, rather than to wealth-maximization. This shift in focus suggests that the interests of the future-decedent, and the relational-living in blocking commercial exploitation, might merit longer periods of protection for those who choose not to commercialize a decedent, than for those who choose to commercially exploit their dead relatives. Commercialization periods should be far shorter than those afforded under copyright law because the primary motive of postmortem privacy is not to incentivize the production or commercialization of the dead, in contrast to copyright’s objectives of promoting creation and distribution. One or two decades of exclusive commercialization rights for the relational-living or to further the preferences of the future-decedent to exclusively commercialize their identities postmortem should be an outer limit of these laws.²⁹⁸ We could consider affording longer rights to the relational-living, perhaps tied to their lifetime, if they are not commercializing their loved ones.

While statutes will need to set a fixed duration, the tort system has more flexibility to tailor duration to the relevant interests. Legislators could also adopt flexible terms linked to the lifetime of those known to the deceased or set “reasonable” durations. We recognize that there may be some information costs associated with such variability and that these costs may weigh in favor of a more fixed and consistent term. But postmortem terms could be predictable and known even if they differ depending on whether the relevant context is burial, information privacy for the living, grieving, or commercialization.²⁹⁹ Also, the information costs concern is of most relevance when maximizing the efficient use of property, something that we do not think is relevant in the context of protecting postmortem privacy. We also are less concerned about notice because we think that truthful, non-misleading or fictionalized depictions of the deceased in news reporting and expressive works (such as, movies, docudramas, and biographies) should generally be insulated from liability. This would relieve content creators of the burden of tracking down rights-holders for permission. Statutory exemptions for such uses could further reduce concerns, as we will discuss next.

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In sum, the boundaries of postmortem privacy should reflect the legitimate interests that justify extending it and be shaped to accommodate competing interests among stakeholders and the broader public. Postmortem rights should apply equitably to the dead, but must otherwise be limited in duration, scope, transferability, and with respect to in whom they can vest.

C. Limitations: Freedom of Speech, Collective Grief, and Commemoration

Postmortem privacy rights must be mediated with the interests of the living and the public’s need to speak about, depict, and engage with people who are no longer alive. Addressing the longstanding and wide-ranging tension between free speech and privacy is beyond the scope of this paper, but it is still essential here to highlight the danger that amplifying postmortem privacy poses to the public’s ability to commemorate and depict real people (whether in fictionalized or nonfiction contexts).³⁰⁰ This tension between privacy and speech has been evident from the emergence of the privacy tort in the late nineteenth century and has constitutional dimensions. As a federal court in Massachusetts noted in the nineteenth century case of Corliss v. Walker: “It would be a remarkable exception to the liberty of the press if the lives of great inventors could not be given to the public without their own consent while living, or the approval of their family when dead.”³⁰¹

Grieving is not an activity for only close family and friends. When celebrities and public figures die, we collectively mourn and celebrate them. Because a range of activities count as mourning and celebration, some latitude is necessary for the public’s diverse approaches to grieving. Courts are conflicted about these moments of public grief and have struggled to determine when a commemorative item has crossed the line into being inappropriate and unreasonably exploitative.³⁰² There are also different opinions about the appropriate duration of collective and societal grieving, much as there is disagreement about the appropriate duration of mourning close loved ones after they die.³⁰³

Many deceased individuals are considered heroes that people want to collectively celebrate even years after their death. Recently, novelist Toni Morrison, Chief Standing Bear, and civil rights hero John Lewis have been honored with stamps bearing their visages.³⁰⁴ Few twentieth century leaders rate more public commemoration than Martin Luther King, Jr. Yet, his Estate continues to exercise strict control over the use of his image and speeches. The Estate charged a private foundation $800,000 for the use of King’s inspiring words and likeness on a public memorial to King in Washington D.C. that the foundation donated to the National Park Service.³⁰⁵ This conflict between public access to fallen heroes and celebrities and their relatives’ interests in controlling and profiting from postmortem depictions raises a host of questions concerning who is the keeper of history; who has the right to the value of a deceased celebrity; who continues to have postmortem selling power; and whether we should treat postmortem publicity rights the same as the inheritable economic value of copyrights and patents, or differently. Ultimately, we conclude that postmortem privacy is different, and such rights should not stand in the way of public tributes or the collective honoring of our heroes.

The First Amendment and other speech-related considerations will and should limit many postmortem privacy claims, just as they do for privacy and publicity claims for the living. In fact, the balance should tip more in favor of protecting free speech in the context of postmortem claims. Still, there is not a clean metric to determine when postmortem privacy should yield to speech-related interests. For example, when does the public have a right to see the photos of Vince Foster’s suicide or the Kobe Bryant crash site and when do they not? At some point the facts surrounding someone’s death or health (after their death) appropriately become matters of legitimate public scrutiny. Courts have struggled mightily with line-drawing and have largely focused on the informational content at issue or what a specific image, for example, would add to the public discourse around a particular person or event versus the likely harm and distress caused to the survivors of sharing the images and information.³⁰⁶ There are evolving (and mixed) views on this question. In Favish, the Supreme Court implied that words were enough to describe Vince Foster’s suicide; the public did not need to see the photographs of his corpse to adequately protect the freedom of the press or freedom of information more generally.³⁰⁷ Prior to Favish, however, many cases had gone in the opposite direction.³⁰⁸ Determinations of when the public requires access to information and images about the dead are likely to be highly contextual. In some instances, death images will be essential to evaluating what happened—consider the ongoing debates about John F. Kennedy’s assassination.³⁰⁹ But in other instances, the public interest in seeing a death image will not sufficiently outweigh the likely harm and distress to the relations of the deceased caused by the distribution of such images.³¹⁰

Nevertheless, in many instances postmortem disrespect must be tolerated. For example, we can understand that George Floyd’s family might prefer that his name and face not appear on t-shirts and tote bags that make random entrepreneurs wealthy and turn him into a commercial artifact; however, the First Amendment likely does and should afford protection for some uses of a deceased person’s image and name in the context of such a high profile incident that generates significant public discourse about racial disparities and excessive use of force by police officers. Such latitude may well include the making and selling of t-shirts and banners that include a person’s image on them.³¹¹ Whatever the limits the First Amendment imposes (or doesn’t) on such actions, George Floyd’s heirs should have at least as much control over what happens to him postmortem as the family of Kobe Bryant or Martin Luther King, Jr.³¹²

Concerns over unreasonably restricting speech are partially encompassed in the prima facie requirement in some privacy torts (including postmortem ones) that the use of the person or their information be “highly offensive.”³¹³ Consider the Tenth Circuit’s decision in Showler v. Harper’s Magazine Foundation, which distinguished the circulation of “gruesome” autopsy, crime, or accident scene images of a decedent from the “respect[ful]” death images at issue in the case before it.³¹⁴ The court rejected a family’s privacy-based claims arising out of the publication of photos of their loved one’s body taken at his open-casket funeral, highlighting that he “looked fine” and “[t]he photographs . . . accurately depict[ed] the image seen by those who attended his funeral to pay their respects.”³¹⁵ The court stressed that the highly-publicized funeral was open to the public and that the photographs of the fallen serviceman at issue were slated for a magazine story about the grief and tragedy caused by the war in Iraq. Accordingly, the use was part of public discourse surrounding the war, rather than exploitative.³¹⁶

Societal interests in accessing information about the dead should also limit the scope of postmortem privacy. Surviving family, heirs, or other publicity and IP interest holders might wish to deploy postmortem privacy rights to conceal a dead relative’s misconduct (such as pedophilia), support for still-controversial causes that survivors might disagree with (such as abortion rights), unacceptable attitudes (such as racial bigotry), or simply to deny the public access to unpublished works after an artist dies to fulfill the decedent’s request to not publish them.³¹⁷ Concerns about sanitizing or hiding history are significant. For example, “MJ the Musical,” a Broadway show endorsed by the Michael Jackson estate, sidestepped the popstar’s contested relationships with young boys.³¹⁸ The public has a right to know facts about a deceased person, particularly a public figure, whatever the preferences of the decedent or their heirs might be.

Notably, our intellectual property system, despite a robust fair use defense, extends protections under copyright law potentially for seventy years after an author’s death.³¹⁹ Given the preferential treatment afforded unpublished works, in large part because of privacy concerns, copyright could keep works hidden from public scrutiny for decades.³²⁰ This may be particularly relevant for a famous person’s private diaries that both the deceased and the family may wish to keep private (without destroying them), but that may have particularly valuable information that the public has a countervailing interest in accessing.³²¹ We cannot resolve here the many different contexts in which postmortem privacy and the competing interests in speech and access to information will clash. Instead, our objective here is to highlight that recognizing postmortem privacy may sometimes limit access to information that might be of great interest and value.

Resolving the tension between postmortem privacy and speech requires careful consideration of the interests at stake on both sides of the ledger. The development in Part II of what justifies postmortem privacy (as well as what does not) is an essential first step in conducting such a First Amendment analysis. The insights of prior scholarship as to how to evaluate First Amendment defenses in the context of right of publicity and appropriation claims can also facilitate this analysis.³²² Ultimately, the robustness of First Amendment defenses to postmortem privacy claims does not alter the legitimacy of such rights as a starting point. Instead, recognizing the importance of speech-related limits on postmortem privacy is essential and suggests that statutory adoptions of postmortem rights should sometimes include explicit speech-protective limits to guard against unduly chilling speech or information-gathering about the dead.

Conclusion

The law of postmortem privacy isn’t a misnomer. We have shown that privacy concerns do not die with us. They linger with the living and with legal claims that extend our privacy interests beyond the grave. But the law is haphazard, inconsistent, and at times incoherent. The reasons for defending postmortem privacy rights offered in this Article comprise a different vision of postmortem privacy rights than that which currently exists. There are legitimate reasons to recognize some limited postmortem privacy rights grounded in the interests of decedents, the living, and society. But postmortem privacy must be reformulated to focus on furthering the interests of future-decedents and the relational-living. It must be better shaped to achieve these goals, while also maintaining harmony with broader societal objectives. In light of our analysis, postmortem privacy should not be restricted only to those who are famous, nor should it focus primarily on monetary harms. Instead, our analysis reveals that the current law—which focuses on commercial value after death as the prime basis to extend rights, issue injunctions, and award damages—has it backwards, or at least off kilter.

Recognizing and reframing postmortem privacy is crucial at this juncture as technology increasingly extends the possible uses of our attributes and digital assets after death, and as legislators at the federal and state level consider various ways to address privacy protections for both the living and the dead. This project provides a foundational framework that can direct these and other efforts to protect postmortem privacy, without jeopardizing the rights of the living to meaningfully engage with those who have come before them.

* © 2024 Anita L. Allen & Jennifer E. Rothman. Anita L. Allen is the Henry R. Silverman Professor of Law and Professor of Philosophy at the University of Pennsylvania and Jennifer E. Rothman is the Nicholas F. Gallicchio Professor of Law at the University of Pennsylvania. We are thankful for comments from Michael Birnhack, David Enoch, Lee Fennell, Albert Gidari, David Horton, Eduardo Peñalver, Robert Post, Paul Schwartz, Fred Smith Jr., Eva Subotnik, Laura Underkuffler, Rebecca Wexler, and participants at the Privacy Law Scholars Conference 2023, Georgetown’s Technology & the Law Colloquium, Fordham’s Privacy & Technology Seminar, NYU’s Philosophy & Technology Seminar, University of Oxford’s Jurisprudence Discussion Group, Yale Law School’s Information Society Project, and at faculty workshops at Cornell, University of Pennsylvania, and University of Texas. We are also grateful for the excellent research assistance of Penn’s library staff, particularly Paul Riermaier, Genevieve Tung, and Penn Postdoctoral Fellow Christopher Muhawe and research assistants Elizabeth Ostertag, Astonique Robinson, and Shashank Sirivolu, as well as the editors of the Michigan Law Review.