CAN YOU USE DECEASED PICTURES IN PUBLICATIONS (Postmortem Right of Publicity In New Jersey)

 CAN YOU USE DECEASED PICTURES IN PUBLICATIONS

Law[edit]

United States[edit]

See also: Privacy laws of the United States

Under common law, the right to privacy is considered a personal right, meaning it applies only to the living and, consequently, does not recognize the privacy interests of the deceased. Because of this, defamation and privacy torts that are used to prevent unjust damage to individuals' reputations cannot be extended post-mortem.^[2] For example, a family cannot file suit for invasion of privacy on behalf of a deceased relative as a personal right; it can only be exerted by the person whose rights are being infringed upon. In addition, the deceased do not qualify for privacy protections held in constitutional and statutory rights, such as those noted in the Fourth and Fourteenth Amendments.^[2] Judicial justification for the termination of privacy rights at death is centered on two main points: firstly, the deceased can no longer be an active agent, and secondly, the deceased are incapable of being harmed by the invasion of privacy or defamation.^[2][4] The only clear extension of postmortem privacy rights under federal law is those pertaining to the property. Via Will, private property and some personal information can be passed on to heirs in accordance with the decedent's wishes.

Most post-mortem privacy protection occurs on the state level. Thus, legislation and the degree of protection vary widely from state to state.

Relevant court cases[edit]

Jesse James Jr. v. Screen Gems Inc. established that rights of privacy do not survive death. The widow of Jesse James Jr. filed suit against Screen Gems on behalf of her late husband, claiming the use of his name in a documentary was an invasion of his privacy. The court decided her claim was insufficient because it only applied to her husband.^[5]

DECEASED PERSONS The US District Court for the District of New Jersey held that New Jersey common law would recognize a postmortem right of publicity. The court did not decide, however, whether this right survived death if the person’s persona was not exploited during his or her lifetime, as the publicity of the person in question, Elvis Presley, was clearly commercialized during his life. (Estate of Elvis Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981).) The court also avoided deciding how long the right would survive death, as that was not an issue in the case. The court did, however, suggest that a time be set by the New Jersey State Legislature, which has not happened to date. (Estate of Elvis Presley, at 1355 n.10.) Prima v. Darden Restaurants, Inc. cited the Estate of Elvis Presley for the proposition that New Jersey common law would recognize a postmortem right of publicity (78 F. Supp. 2d 337 (D.N.J. 2000)). There does not appear to be any decisions from a New Jersey State court recognizing a postmortem right of publicity. Therefore, New Jersey State courts could decline to follow this line of federal cases and instead hold that there is no postmortem right of publicity under New Jersey common law. However, this outcome seems unlikely as the right of publicity is firmly grounded as a property-based right. 

https://www.lowenstein.com/media/4715/right-of-publicity-laws-new-jersey2.pdf