Right of Publicity

MLK Center v. American Heritage Products: A Descendible Publicity Right Without a Lifetime License

Georgia's Supreme Court held that Dr. King's right of publicity survived his death and was inheritable even though he never licensed his identity for profit — uncoupling descendibility from lifetime commercial exploitation and reshaping what a non-commercial figure's estate can protect.

October 20, 2025
Sculpted bust on a workshop shelf in soft light
An estate's right to control a likeness need not rest on the figure having sold it in life. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

In the early 1980s a company called American Heritage Products began marketing a plastic bust of Dr. Martin Luther King, Jr., promoted as a funeral accessory and sold to the public. The company had approached the Martin Luther King, Jr. Center for Social Change about a partnership; when the Center declined, American Heritage proceeded without it. The Center sued to stop the busts, asserting Dr. King’s right of publicity. The federal courts confronted a problem of first impression under Georgia law and, rather than guess, certified the controlling questions to the Supreme Court of Georgia. That court’s answers — Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc., No. 38748 (Ga. Oct. 28, 1982), opinion by Presiding Justice Hill — established one of the most consequential propositions in licensing-estate law: a right of publicity can survive death and pass to heirs even when the person never commercially exploited it in life. On that basis the United States Court of Appeals for the Eleventh Circuit reversed and remanded, No. 81-7264 (11th Cir. Jan. 3, 1983).

At a glance

  • Certified decision: MLK Center v. American Heritage Products, No. 38748 (Ga. Oct. 28, 1982), Hill, P.J.
  • Federal disposition: No. 81-7264 (11th Cir. Jan. 3, 1983), reversing the district court and remanding in light of the answers
  • The product: A plastic bust of Dr. King marketed and sold by American Heritage without the King Center’s involvement
  • Certified questions: (1) Is the right of publicity recognized in Georgia as distinct from privacy? (2) Does it survive death and pass by inheritance? (3) Must the owner have commercially exploited it in life for it to survive? (4) What defines commercial exploitation?
  • Answers: (1) yes; (2) yes; (3) no; (4) unnecessary to reach
  • Why it matters: Descendibility does not depend on a lifetime license, so estates of figures who never sold their identity — leaders, public servants, the famous-for-non-commercial-reasons — can still control its posthumous use

The question the federal courts would not answer alone

The dispute reached federal court on diversity, which meant Georgia substantive law controlled. But Georgia had not squarely decided whether it recognized a right of publicity separate from the right of privacy, and certainly had not decided whether such a right outlived its owner. Rather than predict an answer that the state’s own courts might later reject — the very trap that produced the Factors v. Pro Arts whiplash over Tennessee law — the Eleventh Circuit certified the questions to the Supreme Court of Georgia. Certification put the development of Georgia’s publicity doctrine where it belonged, in the state’s highest court, and produced an authoritative answer rather than a federal forecast.

A right distinct from privacy

Presiding Justice Hill’s opinion first separated the right of publicity from the older right of privacy. Georgia had long recognized privacy, but privacy protects a person’s interest in being let alone — in not having private life exposed or identity used in a way that wounds dignity. The right of publicity protects something different: the commercial value of a person’s identity, the interest in controlling and capturing the economic benefit of one’s name and likeness. The court recognized the appropriation of another’s name and likeness, without consent and for financial gain, as actionable in Georgia, and treated the publicity interest as a distinct, property-like right rather than a subspecies of privacy. That characterization matters because property rights, unlike personal dignitary interests, are the kind of thing that can be inherited and devised.

Descendibility uncoupled from lifetime exploitation

The decisive move was the answer to the third certified question. American Heritage’s most powerful argument drew on the line of authority suggesting that a right of publicity survives death only if the owner exploited it commercially during life — the theory that the right is, in effect, a business the person built and could pass on, so that without a business there is nothing to inherit. Under that view Dr. King’s estate would have been vulnerable: he was a minister and civil-rights leader, not a commercial endorser, and he had not built a licensing enterprise around his image.

The Supreme Court of Georgia rejected the precondition. It held that the right of publicity survives the death of its owner and is inheritable and devisable, and that it does so without any requirement that the owner have exploited the right commercially during life. The court declined to make descendibility turn on whether the person had, in life, treated identity as a revenue source. Because the answer to question three was no, the court found it unnecessary to reach question four’s request for a definition of commercial exploitation — the definition no longer governed anything.

The reasoning rested on a sense of basic fairness as much as doctrine. If the right is a property interest in the commercial value of identity, there is no principled reason its survival should depend on whether the owner happened to monetize it before death. A person who chose not to commercialize a famous identity — whether from principle, profession, or indifference — should not thereby forfeit the estate’s ability to prevent others from doing so after death. For a figure like Dr. King, whose stature was moral and political rather than commercial, that holding was the difference between an estate that could control exploitation of his image and one that could not.

Why it reshaped licensing-estate law

The practical significance is broad. A rule that ties posthumous publicity rights to lifetime exploitation favors entertainers and athletes who built licensing businesses and disfavors everyone else. Georgia’s rule opened descendible protection to the estates of figures whose fame was never for sale: statesmen, scientists, activists, public servants, and the merely famous. For such estates, MLK Center supplies the doctrinal foundation to police — and, if they choose, to license on their own terms — uses of the identity that the figure never sanctioned and might never have permitted. It also reframes the estate’s role from passive heir of an existing business to active steward of a value that the law recognizes whether or not the figure ever cashed in on it.

Open questions

The decision answers the existence and inheritance questions but leaves the boundaries to later cases. Because the court found it unnecessary to define commercial exploitation, Georgia law was left without a precise account of what counts as an actionable appropriation versus protected expression — a gap that matters when the use is a biography, a documentary, a work of art, or commentary rather than a mass-market bust. The opinion does not fix the duration of the descendible right or the line of succession beyond the immediate facts. Nor does it resolve how the right interacts with the First Amendment when the deceased is a figure of profound public and historical importance, whose image is woven into the nation’s civic memory; the more iconic the person, the stronger the public’s expressive interest in using the image, and the court did not chart where that interest overrides the estate’s control.

Implications

  • Lifetime licensing is not a prerequisite. In Georgia, an estate can assert a descendible right of publicity even if the figure never commercialized the identity — fame, not prior sales, anchors the right.
  • Non-commercial figures gain protection. The holding extends posthumous control to estates of leaders, public servants, and others whose renown was never for sale.
  • Certification stabilizes state-law questions. Routing the descendibility question to the state supreme court produced binding law rather than a federal prediction vulnerable to later correction.
  • Publicity is property, not just privacy. Treating the interest as a distinct property right is what makes it inheritable and devisable.
  • The expressive boundary is unsettled. The decision leaves the line between protected commentary and actionable appropriation for later cases — a particular concern for historically significant figures.

Frequently asked questions

Did Dr. King have to license his image in life for his estate to control it after death? No. The Supreme Court of Georgia held that the right of publicity survives death and is inheritable even without any lifetime commercial exploitation, rejecting the argument that the right must have been monetized in life to pass to the estate.

What was the product at issue? American Heritage Products marketed and sold a plastic bust of Dr. King, promoted in part as a funeral accessory, after the King Center declined to participate in the venture.

What happened in the federal courts after Georgia answered? The Eleventh Circuit, in No. 81-7264 (Jan. 3, 1983), applied the Georgia Supreme Court’s answers, reversed the district court’s contrary judgment, and remanded for further proceedings consistent with the recognized descendible right.

Authorities and sources