Post-Mortem Publicity Rights In Nigeria: Where Does The Law Stand?

Introduction

When a Nigerian filmmaker wants to produce a biopic about a famous musician, or a fashion label wants to commercially exploit the identity of a deceased public figure, a practical question quickly arises: who, if anyone, has the right to grant permission for the commercial use of that person's identity after death? Does an estate have the capacity to license the name, picture or voice of a deceased person in the same way that copyright and trademark rights can be dealt with, or do proprietary rights relating to identity die with the person?

There is no clear answer under Nigerian law, but it is an issue that we cannot ignore. The identities of musicians, actors, athletes, and other personalities continue to make money long after they pass away. Where does the law leave someone who wants to commercially exploit the identity of a deceased person? Is there a post-mortem right of publicity that the person's estate can exercise, even if Nigerian law does not expressly call it that, or is it a legal myth altogether? These are the questions that we explore in this piece.

Publicity Rights: More Than a Privacy Right

Primarily, the right of publicity protects the commercial value associated with a person's identity. Unlike the right to privacy, which is concerned with personal autonomy and dignity and protection from improper interference, publicity rights protect against unauthorised commercial exploitation of personal attributes such as a person's name, likeness, image or voice. The distinction is important because the two rights protect different interests: privacy protects personal interests, while publicity rights protect the economic value attached to identity.

Publicity rights therefore have many of the characteristics of proprietary rights. They concern an intangible form of commercial value and, in jurisdictions where they are recognised, may be licensed, assigned and, in some cases, inherited by an estate after death. Whether publicity rights should properly be classified as intellectual property is a separate and more difficult question. For present purposes, the more immediate question is whether the commercial value attached to a person’s identity can survive the person's death and be controlled or exploited by someone else. If it can, what is the legal basis for doing so in Nigeria?

Does Nigerian Law Recognise Post-Mortem Publicity Rights?

Strictly speaking, no. While Nigerian law protects certain aspects of a person’s identity, it does not expressly recognise identity itself as a proprietary right capable of surviving the individual’s death.

Privacy Law

The constitutional right to privacy contained in section 37 of the Constitution of the Federal Republic of Nigeria, 1999, and the Nigeria Data Protection Act, 2023, provide protection against certain forms of interference with personal information.¹ These protections, however, are directed primarily at personal privacy of data subjects, who from the tenor of the law, are living persons.² They do not establish any separate commercial right in a person’s identity that can be inherited or exercised after death.

Copyright Law

Copyright provides a different form of protection. The Copyright Act, 2022 protects works such as photographs, audiovisual works, and sound recordings.³ Copyright may therefore protect the photograph, film or recording in which a person’s identity appears, but it does not give the copyright holder ownership of the identity itself.

Ownership of the copyright in a photograph of a deceased person, for example, does not give the copyright owner the exclusive right to commercially exploit the personality depicted in that photograph. Case law tells us that as far as copyright law is concerned, that is an entirely different matter.⁴ If you wish to use the photograph in question, you will need the copyright owner’s permission, but that is about as far as copyright takes it. It really is not the business of copyright law whether the person depicted is dead or alive. Its concern is who owns the copyright in the work.

Trademark Law and Passing Off

Trademark law presents a more interesting position. A person’s name, signature, likeness, or other identifier may, where it is capable of functioning as a trademark and the requirements for registration are satisfied, be protected as a trademark.⁵ In such a case, the trademark is a proprietary right which is capable of assignment and transmission.⁶ The trademark right would, consequently, not end with the death of its owner. The estate or successor may continue to control and enforce the trademark after death.

The protection, however, is limited to the trademark as registered and in relation to the goods or services for which it is protected. It would generally not translate to a general right to control the commercial use of the person’s identity. For example, registering a caricature of a person as a trademark would not, simply by virtue of that registration, give the proprietor a monopoly over every photograph or other depiction of that person.

Passing off may provide a broader, although still indirect, form of post-mortem protection. If a person’s name, image, or personality has generated substantial commercial goodwill, such goodwill may survive the person’s death and form part of his estate. In that situation, the estate may have a claim in passing off, if a third party subsequently uses the deceased person’s identity in a manner that falsely suggests an endorsement, association or commercial connection with the estate, or the business associated with the deceased. In this sense, passing off could operate in a manner similar to a post-mortem publicity right, although this remains an untested and potentially contentious area of Nigerian law.

The Commercial Reality and Comparative Perspectives

In practice, however, the business world has long treated a deceased person’s identity as capable of being dealt with after death. Producers, publishers, and other entities often seek the cooperation or consent of the family or estate before using the name, likeness, image or other materials associated with a deceased person. These arrangements are sometimes described as “life rights” deals.⁷

There are good reasons for this even where the law does not clearly recognise a post-mortem publicity right. The family or estate may control private photographs, recordings, correspondence, and other materials needed for the project. Cooperation may also reduce the risk of claims arising from copyright, privacy, passing off, and other legal claims. In some cases, the parties may simply consider it commercially sensible to obtain the family’s support before proceeding.

The existence of these arrangements should not, however, be mistaken for recognition of a legal right of publicity. The fact that parties are willing to negotiate over the use of a deceased person’s identity does not necessarily mean that Nigerian law has given the estate an exclusive proprietary interest in that identity. Often, what is being negotiated is a package of consents, licences, access rights and risk protection rather than a legally recognised property right in the deceased person’s identity.

Other jurisdictions have taken a different approach. In the United States, several states, including California and Indiana, expressly recognise post-mortem publicity rights and allow the rights to be controlled or exercised after death for a specified period. The precise scope and duration of protection vary from state to state.⁸ The United Kingdom, by contrast, does not recognise a standalone right of publicity, relying instead on existing legal concepts such as copyright, trademarks, passing off and privacy to address particular forms of unauthorised use.⁹

Nigeria currently sits closer to the latter position. Existing laws may provide protection in particular circumstances, but there is no distinct legal right which answers the basic question: who controls the commercial value of a deceased person's identity after death?

Why Nigeria Should Recognise Post-Mortem Publicity Rights

The case for statutory recognition is ultimately a practical one. The current legal framework leaves important questions unanswered. Who controls the commercial use of a deceased person's identity? Does the right pass to an estate? Who may exercise it where the deceased dies intestate? How long should any such right last? What uses should require consent, and what uses should remain freely available for journalism, commentary, education or artistic expression?

A clear statutory framework could provide certainty on these issues. It could establish the nature and scope of the right, determine who may exercise it after death, prescribe its duration and set out the circumstances in which consent is required. This would benefit not only the estates of deceased personalities seeking to protect and commercialise their legacy, but also film producers, advertisers, publishers, brands and other businesses seeking to make legitimate commercial use of a person's identity.

Any such right would, however, need to be carefully balanced against competing public interests. Statutory protection should not give an estate an absolute monopoly over everything said, written or created about a deceased person. Journalism, biographies, documentaries, education, artistic expression and matters of legitimate public interest should remain protected. The objective should be to protect the legitimate commercial value of personality without restricting legitimate speech and creativity.

Conclusion

At present, Nigerian law does not expressly recognise a distinct post-mortem right of publicity. It does, however, protect aspects of a person’s identity through privacy, copyright, trademarks and passing off, some of which may continue after death. What is missing is a single proprietary right in the commercial value of a person’s identity that clearly survives death and can be controlled by the estate.

This gap matters because a personality’s commercial value may outlive the individual. As Nigeria’s creative industries grow, deceased personalities will increasingly feature in films, documentaries, advertising, merchandising and other commercial ventures. Yet existing laws do not clearly answer the question of who controls that commercial value after death. Nigeria should therefore consider a statutory framework for post-mortem publicity rights, providing certainty as to who may control and exploit a deceased person’s identity, for how long and to what extent.

Footnotes

1. Amudat Adeleke v. Bukola Saraki et al. (Federal High Court, FHC/L/CS/193/2019, 27 April 2020); Adunni Adewale v. Polance Media Ltd. et al. (High Court of Lagos State, LD/17781MFHR/2024, 24 June 2025)

2. For instance, the rights to access, rectify, erase and object to the processing of personal data, as well as the right to withdraw consent and to contest certain automated decisions, are rights that a person can only exercise if he is alive. See Nigeria Data Protection Act, 2023, ss. 34-38

3. Copyright Act, 2022, s. 2

4.Banire v. NTA-Star TV Network Ltd. (2021) LPELR-52824(CA); Ubom v. Globacom (Nig.) Ltd. (2025) 6 NWLR (Pt. 1985) 157; Airtel Networks Limited v. Adewole Ojo (Court of Appeal, CA/LAG/CV/141/2023, 1 April 2026)

5. Trademarks Act, 1967 (as amended), s. 67

6. Ibid, s. 26

7. Ethan Rosenberg, ‘Life Rights for Biopics and Docudramas: The Case for Acquisition’ (Fordham Intellectual Property, Media & Entertainment Law Journal, 28 March 2025) <https://fordhamiplj.org/2025/03/28/life-rights-for-biopics-and-docudramas-the-case-for-acquisition/> accessed 2 September 2026

8. Erik W. Kahn and Pou-l Bonnie Lee, ‘“Delebs” and Postmortem Right of Publicity’ (2016) 8(3) Landslide <https://www.americanbar.org/groups/intellectual_property_law/resources/landslide/archive/delebs-postmortem-right-publicity/> accessed 2 September 2026

9. HM Revenue & Customs, ‘CG68450 – Intellectual Property Rights: Image Rights: Image Rights in the UK’ (Capital Gains Manual, updated 2 September 2026) <https://www.gov.uk/hmrc-internal-manuals/capital-gains-manual/cg68450> accessed 2 September 2026