Dead persons in a film production (through their representatives/heirs) have a "right of publicity": a lawyer explains.

Dave Stern: Whether someone is alive or deceased, they do have a right of publicity, which means that they are (or should be) in control of the way their personality, their image, their likeness is displayed and exploited.

So, if a production (a third party) wishes to obtain these rights, the same would apply for if the person is alive or deceased. If they are deceased, I’d recommend the production to reach out to the estate of the deceased because their estate would have obtained the rights of publicity from the deceased on the date of passing.

So, if they want to reference and exploit an individual’s likeness, personality, image (even though they have passed), they would need to obtain those rights from the estate directly.

There is the component of public domain, which is a term that is not often understood and it varies by country. In Canada now, public domain is any individual, company or event would be free to basically use/reference/exploit as needed, provided the owner of that work has passed plus 75 years after the date of passing has also elapsed.

So, after that period of time, something is public domain: if someone were to reference (positively or negatively) an historical character, you would be able to do that because it’s safely in the public domain. Someone who has recently passed however, you would need to obtain the necessary rights from their estate.

Dave Stern is an entertainment lawyer and partner at Blaney McMurtry LLP

https://www.frontrowinsurance.com/articles/film-production-right-of-publicity