Undying approval? Passing off images of the deceased

Ekaratne, S. C. ORCID: https://orcid.org/0000-0003-3899-4322 (2026) Undying approval? Passing off images of the deceased. European Intellectual Property Review, 48 (6). pp. 343-358. ISSN 0142-0461

Abstract/Summary

Artificial intelligence now allows human images to be re-created in post-mortem deepfakes and digital replicas. Deceased people can thus be portrayed doing acts they never did while alive. This article examines how the law of passing off in England and Wales could be developed and deployed for the unauthorised dissemination of deceased individuals’ images. Since no case in this jurisdiction has yet grappled with the post-mortem aspect, the article draws on existing case law featuring images of the living and other indicia of the dead. This precedent-based analysis examines each element of passing off to construct a refined version of the tort specifically for this context. Among other contributions, the article identifies and evaluates situational categories of image-associated post-mortem goodwill, demonstrating that such goodwill is consistent with current precedent. It also critically assesses the novel issue of image-associated goodwill created only after the person’s death. In making recommendations for principles and possibilities, significant limitations of passing off are revealed, as well as key intersections with other laws. While the article’s focus is the law of England and Wales, its detailed analysis of this timely issue could be useful for image-oriented law reforms in other jurisdictions.

Item Type	Article
URI	https://centaur.reading.ac.uk/id/eprint/128648
Refereed	Yes
Divisions	Arts, Humanities and Social Science > School of Law
Publisher	Sweet & Maxwell
Publisher Statement	This is a pre-copyedited, author-produced version of an article accepted for publication in the European Intellectual Property Review following peer review. The definitive published version (S. Che Ekaratne, ‘Undying Approval? Passing Off Images of the Deceased’ (2026) 48(6) EIPR 343–358) is available online on Westlaw UK.
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