Passing Off and Post-Mortem Image Protection: A Comparative Perspective
Using AI technology, deceased people can be realistically depicted doing acts they never did while alive. Sometimes these portrayals are authorised by heirs, as in the example of an AI-enhanced Agatha Christie teaching an online writing course. Other post-mortem depictions, however, are created without consent. Last year, OpenAI’s Sora app (now discontinued) paused users’ ability to generate videos of Martin Luther King, Jr after ‘disrespectful depictions’. Two years earlier, actor Robin Williams’s daughter criticised ‘disturbing’ AI-generated videos of her father.
Which laws can be used to counter unauthorised post-mortem deepfakes? Laws applicable to personal indicia (e.g. image and voice) differ among jurisdictions. Some jurisdictions recognise publicity rights or personality rights, which can directly protect a range of personal indicia against unauthorised use. Digital replica rights are more specifically aimed at modern deepfakes. Comparing an example from the United States (US), this post examines the tort of passing off as a means to protect images of the deceased in England and Wales – where standalone indicia-protective rights are absent.
US publicity rights and digital replica rights
A right of publicity can be infringed by using specified personal indicia (such as name, image, voice and signature) without the person’s consent. The majority of US states recognise publicity rights, most of which also apply post-mortem (McCarthy and Schechter, The Rights of Publicity & Privacy (Thomson Reuters 2026) §§ 6:2, 9:17). These state laws vary widely on matters including which indicia are protected, the extent of commercial use required, and post-mortem duration.
There is no national-level, federal publicity right in the United States. There is, however, draft legislation for a federal digital replica right – and such rights also exist in some state publicity rights laws (e.g. New York and California). The most recent version of the federal bill is the Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2026 (‘NO FAKES Act of 2026’). If passed, the NO FAKES Act (‘NOFA’) would provide a new federal intellectual property right to authorise the use of an individual’s voice or visual likeness in digital replicas. This right would not be contractually assignable during the individual’s lifetime, but would be inheritable and licensable within certain time limits. The NOFA’s federal digital replica right is narrower in scope than most state publicity rights. Per § 2(a)(2), the NOFA’s right would only encompass certain computer-generated electronic representations – and only of voice or visual likeness. State publicity rights may also protect other indicia, such as name and signature.
For the NOFA’s post-mortem protection, per § 2(b)(2)(A), the individual need not have commercially exploited their voice or likeness during their lifetime. As we shall see, this differs from the law of passing off. While the NOFA right can last up to 70 years after death, renewal beyond the first 10 post-mortem years would require active and authorised public use of the voice or visual likeness, in interstate or foreign commerce, during specified time periods. Post-mortem renewal also requires registration (§ 2(b)(2)(D)). For most individuals, whose voice and likeness are never used commercially, post-mortem protection would accordingly be available only for 10 years after death. The proposed US right protects more people at the outset, but for a limited time – a very different approach to passing off in England and Wales.
England and Wales: the tort of passing off
As stated by the Court of Appeal in Fenty v Arcadia Group Brands Ltd (para. 29): ‘[t]here is in English law no “image right” or “character right” which allows a celebrity to control the use of his or her name or image.’ Subjects of non-consensual deepfakes must therefore seek redress from a patchwork of laws. Some of these laws, such as data protection and defamation, cannot apply post-mortem. Among the possible legal options, the common law tort of passing off has already been asserted by living individuals to protect image, as in the Fenty case. The HMRC Capital Gains manual even describes this tort as ‘[t]he only way in which a pure image right can be protected in the UK’.
Could the tort of passing off protect indicia of deceased people? Voice-related issues are left for another day, given the paucity of case law: in the only relevant case, the courts declined to rule on whether voice imitation of the (living) claimant could be passing off (Sim v Heinz Co Ltd [1959] 1 WLR 313). The post-mortem question will therefore be explored here focusing on images that are realistic human depictions.
Let us first examine the three required elements of the tort of passing off: (1) goodwill, (2) misrepresentation and (3) damage.
Element 1: Goodwill
In relation to their goods or services, the claimant must own ‘goodwill’: ‘the attractive force which brings in custom’ (Commissioners of Inland Revenue v Muller & Co’s Margarine Ltd [1901] AC 217 (HL) 224). For personal indicia, the claimant’s goodwill must be ‘under the name or other feature he is seeking to protect’ (Fenty, Court of Appeal [50]). The claimant must therefore have goodwill associated with their image to use the tort to counter unauthorised image use. In Irvine v TalkSport Ltd, a well-known Formula 1 driver won a passing off action against a radio station that featured a manipulated photo of him on a promotional leaflet. In the manipulated image, the phone in his hand was replaced by a portable radio with the station’s logo. In Fenty v Arcadia Group Brands Ltd, Rihanna succeeded in a passing off action when Topshop sold t-shirts featuring her photo.
Both these claimants had image-associated goodwill: they were well known to the relevant public and had also used their images commercially in endorsement deals with major brands. Yet most individuals are unlikely to have such goodwill. The average doctor or schoolteacher could not use passing off in an Irvine-type situation. With no history of commercialising their image, they would lack goodwill. By contrast, such commercial use would not be required under the US NOFA during one’s lifetime and first 10 years after death. This comparison prompts the question of whether post-mortem protection should depend on a person having commercialised their image during their lifetime.
Element 2: Misrepresentation
The defendant must have made a misrepresentation that deceived or is likely to deceive a substantial number of relevant consumers. In the image context, the necessary misrepresentation is usually that the claimant ‘endorsed or approved the goods or services of which he complains’ (Fenty, Court of Appeal [43]). In the Irvine case, the defendant’s misrepresentation was that Irvine had endorsed their radio station. In Fenty, the defendant had misrepresented that Rihanna authorised and approved the t-shirt featuring her photo.
Element 3: Damage
Finally, the defendant’s misrepresentation must have damaged or be likely to damage the claimant’s image-associated goodwill. Actionable damage in this context could include loss of sales (as in Fenty) and loss of licensing fees (Irvine). Since all heads of actionable damage involve some commercial aspect, this element would be absent when the only harm is emotional distress.
Passing off and deceased people’s images: goodwill aspects
Irvine and Fenty involved living people’s images. No reported case has ruled on passing off by means of a photographic or video image of a deceased person. In analysing whether the tort could be applied to such images, this section will focus on the first element: goodwill.
Could post-mortem goodwill be associated with an image?
Goodwill can be inherited. Several cases have established that authors’ heirs can have goodwill in indicia such as names and characters (Conan Doyle v London Mystery Magazine (1949) 66 RPC 312 (Ch); Sweeney v Macmillan Publishers Ltd; Shazam Productions Ltd v Only Fools The Dining Experience Ltd). In the Conan Doyle case involving Sherlock Holmes, although the passing off claim failed on the merits, the court recognised that the deceased estate had inherited goodwill. The court also noted that if Holmes had been a real (deceased) person rather than a character, there would have been ‘some right of protection by this Court’ (at 313). In Shazam, a company run by a deceased writer’s family won a passing off claim when a dining show featured actors playing fictional characters created for a television show. It would be consistent with this case law, and with Irvine and Fenty, to recognise post-mortem goodwill associated with images too… but not in all situations, as explored next.
Purely post-mortem goodwill
What if the deceased’s image-associated goodwill was created only after they died? A recent example is the BBC Maestro online course ‘Agatha Christie on Writing’. To create the post-mortem Christie videos, a professional actress was filmed performing as Christie; then Christie’s likeness, from licensed photos, was mapped onto the actress’s face using AI. Any goodwill relating to the video image of Christie (as opposed to her name or still images) was thus created only after her death. Should such purely post-mortem goodwill be recognised? It is suggested that courts remain open to this possibility, with the following questions being relevant to these determinations:
- Did the deceased while alive abandon relevant post-mortem goodwill?
- Was the post-mortem image authorised by the deceased’s estate?
- Who owns the goodwill?
- Would the court apply any presumptions against certain forms of goodwill?
- Is there sufficient goodwill?
In the Christie example, most of these questions point to the possibility of recognising the goodwill. Unlike some modern creative professionals, there seems to be no evidence that Christie abandoned potential post-mortem goodwill. The post-mortem imagery was authorised and approved by Christie’s estate, since the online course is described as ‘in collaboration with’ Agatha Christie Ltd. Estates authorising such post-mortem imagery would be wise to ensure they own goodwill – as in Shazam, where the company owned goodwill for passing off purposes even though the BBC owned related trade marks.
The last suggested question for this analysis, regarding sufficient goodwill, could be an issue because only paying subscribers of the BBC writing course can see the full extent of post-mortem Christie. Would the image-associated goodwill here be comparable to Irvine (High Court [56]): ‘well known by name and appearance to a significant part of the public in this country’? The Christie name would be, but might a court decide that the subscribers-only post-mortem video is not? To avoid such issues, estates could aim such imagery at a wider audience. For instance, future film adaptations of an author’s books could feature an introduction by the post-mortem author version.
Let us now imagine a different scenario. A woman named Kate never worked in her lifetime. After her death, her photos are used by her children to market their products. Unlike Christie, at Kate’s death there was no inheritable goodwill in even one identity indicium, such as Kate’s name or voice. Any goodwill was created entirely post-mortem. In Kate-type situations, courts may – and arguably should – be reluctant to recognise purely post-mortem goodwill. The alternative could incentivise commercialising deceased people who never consented to any commercialisation while alive. Such limits are especially important given the potentially long duration of goodwill, as discussed next.
Duration of post-mortem goodwill
There is no judicially recognised maximum time limit for goodwill. Practically, as Carty has explained, goodwill usually dissipates in time with lack of use. Theoretically, however, goodwill could last forever. This can be contrasted with the US NOFA right: a maximum duration of 70 years with additional requirements for post-mortem renewals within that period. Publicity rights in US state laws have a wide variety of time limits (McCarthy and Schechter, § 9:17). The potentially indefinite duration of passing off is comparatively beneficial for well-known individuals with indicia-associated goodwill. Protection for such ‘celebrities’ via passing off could persist long after the expiry of any time-limited indicia right, which would not require goodwill, applicable also to non-celebrities. Any such new right would require consideration of its duration.
Conclusion
In response to AI-generated deepfakes, many jurisdictions are developing new legal protections. Claimants in England and Wales, where there is no standalone indicia-protective right, may explore passing off as an option given its prior use for living people’s images. Although passing off has not yet been applied to post-mortem personal indicia, and despite other limitations, this tort can be applied to images of a deceased person consistently with current case law. However, images created solely after death are more likely to generate goodwill if widely accessible and if the individual had other indicia-associated goodwill while alive.
The comparison with the US shows a significant difference in approach. The proposed federal digital replica right would protect more people, without requiring lifetime commercial exploitation, but for a defined period. By contrast, passing off protects only those with the necessary goodwill, but such protection may continue for as long as that goodwill survives. A similar durational difference will likely arise within England and Wales if a new indicia-protective right exists alongside passing off. Another consideration is that passing off, like many US state publicity rights laws, could protect a broader array of personal indicia than the US federal bill limited to digital replicas. The US comparison therefore highlights both the possibilities and the limitations of passing off. Such analyses may inform future reforms in England and Wales, as well as in other common law jurisdictions.
By Dr S. Che Ekaratne, University of Reading
This post’s analysis of passing off is based on the article by S. Che Ekaratne, ‘Undying Approval? Passing Off Images of the Deceased’ (2026) 48(6) European Intellectual Property Review 343.
SUGGESTED CITATION: S. Che Ekaratne, ‘Passing Off and Post-Mortem Image Protection: A Comparative Perspective’, BACL Blog, 26 October 2026, https://british-association-comparative-law.org/2026/10/26/passing-off-and-post-mortem-image-protection-a-comparative-perspective/
LICENCE: This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International Licence (CC BY-SA 4.0).
