Post-mortem privacy

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 active agents, and secondly, the deceased are incapable of being harmed by invasion of privacy or defamation.[2][4] The only clear extension of postmortem privacy rights under federal law are those pertaining to 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 varies widely from state to state.

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]

Henrietta Lacks was an African American woman whose cells were removed without consent while receiving cancer treatment. Her cells became the source of the foundational HeLa cell line in the scientific world today.[7] Lacks and her family were neither informed nor asked for consent to the use of her cells for this research. It was not until the 1980s when Lacks's medical records were made public, exposing the rest of her family's medical information as well as the fact that her family was never informed of this.[7] The major issue surrounding the Lacks case is twofold. Firstly, at no point was consent sought for the extraction and research on Lacks's cells. Secondly, her family never received compensation for the commercial use of the HeLa cell line.

While most families wish to conceal the images of their deceased loved ones, Mamie Till Bradley, mother of Emmett Till, decided to make the photos of her brutally murdered son public in spite of officials' attempts to ignore the event.[10] The photos exposed the horrendous realities of racial injustice in America and became a rallying call for many influential civil rights figures, including Martin Luther King Jr. and Muhammad Ali. Moreover, the images forced all Americans to confront the deep-rooted racism in America despite many white Americans’ attempts to remain ignorant to the despicable happenings, especially in the South.[10]

In New York Times Company v. NASA, the D.C. District Court denied the New York Times' request under the Freedom of Information Act (FOIA) for access to audio recordings of the astronauts involved in the Challenger explosion moments before the event. The major argument of the case came down to weighing public interest and the decedents' families, and the court ruled in favor of protecting the decedents' families, claiming that exposing the tapes could cause relatives of the astronauts trauma.[9]

National Archives and Records Administration v. Favish similarly found that under FOIA, the privacy rights of a decedents' relatives are both acknowledged and prioritized when disseminating autopsy/death scene photos of the deceased. This decision was made in regards to the death scene photos of Vincent Foster, a deputy counsel to Bill Clinton.[9]

Marsh v. County of San Diego determined that a prosecutor who photocopied and then released an autopsy photo of a deceased child after his retirement could not be sued under the Doctrine of Qualified Immunity. A major point in the case was whether or not Brenda Marsh had the legal right to control the dissemination of her son's autopsy photos, and though the court determined that she did, it ruled on a technicality that at the time of the events, the law had not yet been "clearly established." [8]

The right of publicity was created as an extension of the right of privacy. It was developed with the intent to provided unique privacy rights to celebrities or anyone whose persona or name had commercial value.[15] Because these people are constantly in the public eye, general rights of privacy are oftentimes not applicable, thus publicity rights accommodate this situation. The right of publicity essentially grants a person the right to control the portrayal of themselves in the public eye, specifically in regard to commercial use.[15] Copyright laws, aimed at protecting the ownership rights of original works, contain a significant amount of overlap with publicity rights. Much like post-mortem privacy rights, no blatant federal rights of publicity have been established, leaving recognition up to individual states. Whether states have laws regarding post-mortem publicity is dependent upon whether the state classifies the right as a privacy right or a property right. If classified as a personal right, states will not recognize post-mortem rights of publicity due to the stipulation that personal rights only apply to the living. If classified as a property right, then the upkeep and transfer of publicity rights follow a similar tract as that of property.[5][16] Most states acknowledge a specific duration for post-mortem publicity rights, which generally range between forty and one hundred years.[17] Because post-mortem publicity rights vary from state to state, court precedent has determined that when establishing a person's post-mortem publicity rights, the legislation of the state in which the decedent lived must be adhered to.[15]

Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. established the right of publicity, granting individuals control of the commercial use of their identity.[5]

Shaw Family Archives Ltd. v. CMG Worldwide, Inc. determined that Marilyn Monroe's estate did not own her post-mortem right of publicity because neither state of her residency, New York nor California, recognized post-mortem rights of publicity.[15]

In Experience Hendrix v. HendrixLicensing.com, Al Hendrix, despite being his son's sole heir, was denied the acquisition of Jimi Hendrix's publicity rights due to the fact that New York, at the time, did not acknowledge post-mortem publicity rights. [16]

The use of deceased celebrities' likenesses has sparked controversy, mainly regarding the potential for their image to be used in a way that is inconsistent with that celebrity's desire. This can occur through the use of a celebrity's image for advertising a product, service, or any other recreation of celebrity likeness for commercial, or noncommercial, use in a way that the celebrity would otherwise not agree to during their lifetime.[18] This then raises questions about a potential violation of that celebrity's privacy because of the use of an individual's image without their consent. This can be seen in the 2012 Coachella concert, which featured a digital recreation of Tupac Shakur. The virtual clone performed on stage, rapping a song never recorded by Tupac during his life.[18] The use of such digital cloning and other similar recreations of celebrities could become a serious privacy concern in that those being reproduced have no control over how they are being represented. Discretion regarding the use of such digital personas is entirely up to whomever owns the right to that celebrity's image, which inevitably opens up the possibility that the decedent's interest is not being prioritized.[18]