Smith-Article

Once confined to the realm of science fiction, holographic performances of deceased celebrities like Whitney Houston, Tupac Shakur, and Elvis Presley are striking features of today’s entertainment industry, drawing live audiences and generating millions of dollars in revenue. Behind this spectacle lies a deeper issue: who has a right to profit from a person’s identity, especially after their death?

This article argues that the current patchwork of inconsistent state right of publicity laws is insufficient to address the challenges posed by emerging digital technologies. It proposes the creation of a comprehensive federal right of publicity that explicitly protects against unauthorized digital replicas while also preserving strong postmortem rights. Drawing on economic theory, this paper contends that individuals who invest in cultivating their persona should be able to pass that economic value to their heirs, and that federal protections are needed to secure these rights consistently across jurisdictions. The paper analyzes the weaknesses of existing state frameworks, examines how the NO FAKES Act addresses some of these problems, and ultimately recommends stronger postmortem protections without unnecessary registration or use requirements. A federal right of publicity would not only honor the economic investments individuals make during their lives, but also provide clear, uniform standards for companies, creators, and courts navigating the modern digital era.