The Application of the Rights of Privacy and Publicity After Death Is Still Unclear in Some States
States may also want to examine their existing right-of-publicity and right-of- privacy laws to ensure that these rights continue after a person's death. Right-of-publicity statutes protect a person from having his or her likeness commercially exploited without his or her permission. Not all states have a right of publicity, and of those that do, some hold that the right ends at the person's death, and others say it continues even after death. The same may hold to for a state-based right of privacy.
A 2010 California appellate decision provides a useful example of the dilemma that heirs face, when the Internet is used to display photos of a loved one after they die. In Catsouras v. Department of California Highway Patrol, a state court determined that surviving family members have a right to sue for invasion of privacy with respect to "death images of a decedent." Previously, California cases had said that a person's right to privacy was personal, meaning that it ended when the person died.
But the Catsouras decision held otherwise. There, court documents alleged that "graphic and horrific photographs" of an accident, taken by the California Highway Patrol, were circulated via email and on the Internet purely for their shock value.
The deceased's family members hired ReputationDefender, a company specializing in online reputation management, to help them get the photos taken off the Internet. The firm reportedly helped to remove the photos from about 2,500 Web sites, but admitted that it would be impossible to get them removed from all sites.