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When a person writes an article or book about a living person, the author has to deal with issues like publicity rights, rights to privacy, moral rights, and defamation. If I'm not mistaken, these rights do not apply to deceased people, however.

On the other hand, some people are protected by "estate rights." (I'm not sure if that's the proper term.) Examples include Jimi Hendrix, Elvis Presley, and Albert Einstein.

Here's my question: How can an author determine if a deceased person they want to write about is protected by estate rights or some other special kind of protection?

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In most places, dead people cannot be defamed

At common law, personal rights (as opposed to property rights) cease at the moment of death. The right to sue for defamation is a personal right - even if a case is on foot at the time of death, it immediately ends and cannot be pursued by the heirs.

What I think you are confusing this with is personality rights. These protect the use of a persons reputation, not against the disparagement of it. Where these exist, and the extent of them is very jurisdiction specific, the protect the persona of the dead person against commercial exploitation under the tort of passing off; a property right,

This is a common law position and civil law jurisdictions do sometimes protect the reputation of the deceased, notably Germany. Some common law jurisdictions may have legislation to that effect, for example, Rhode Island protects the deceased for 3 months after their passing.

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The dead do not have any special rights, rather, certain rights are not extinguished at death. Copyright is the leading example (it last 50-95 years beyond death depending on jurisdiction). Publicity (personality) is another inheritable right, following the Celebrity Rights Act in California (1985). However, a number of states do not recognize the right of publicity at all. Your examples fall within the scope of copyright and personality rights (Eintein has no personality rights, as determined in the case Hebrew University of Jerusalem v. General Motors).

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  • Interesting. So, if I want to write about a deceased person, it sounds like I should just treat them the same as a living person, assuming they have pretty much the same "rights." In other words, I would want to respect their publicity rights, any intellectual property they created, and be careful not to say anything derogatory (or defamatory). At the same time, however, I would assume that people who have been deceased for a very long time - over 100 years, for example - are in a different category. Surely, one can say whatever they want about Caligula and Genghis Khan.
    – Paredon
    Aug 26 at 1:43
  • Maybe I need to ask a separate question, but if a deceased person's publicity rights were violated, or if they were defamed, who would sue the author? Would any relative be entitled to sue, or would the person have to have some sort of "estate." I'll have to do more research, but I think I've read that Elvis Presley and Jimi Hendrix had some sort of special protection.
    – Paredon
    Aug 26 at 1:47
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How can an author determine if a deceased person they want to write about is protected by estate rights or some other special kind of protection?

There is no master index that you can refer to. You can look for obituaries and notices of probate proceedings, but neither is comprehensive. Access to death certificate searches and probate case searches is sometimes restricted. Basically, you use your wits to figure it out and hire a private investigator if you aren't successful.

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