Who Owns You When You are Dead

By Jennifer E. Rothman
October 18, 2018

The video has finally been posted from my July talk about postmortem rights of publicity for the USPTO’s National Trademark Exposition held at the Smithsonian in Washington, D.C. My talk is followed by comments by a former IRS examiner and tax attorney, and a panel discussion with basketball legend Kareem Abdul-Jabbar and his business manager.

The talk focused on celebrity-estate planning. I begin the talk by pointing out that the right of publicity is only one option among many that can protect interests in a deceased celebrity’s identity.  Copyright, trademark, false endorsement, and false advertising laws also often apply.  This not only makes the existence of postmortem right of publicity laws less important, but also makes it crucial for estates when dealing with the IRS and filling out their estate tax declarations of assets to distinguish each. 

This is a major problem in the ongoing Michael Jackson litigation with the IRS.  His estate lumped all name & likeness rights into one box. The Jackson estate also failed to challenge the inclusion of the right of publicity as property of the estate. This is an unsettled issue, but there are good reasons not to include the right of publicity as part of the estate, and estates should certainly be challenging its inclusion, as well as its valuation.  The Whitney Houston estate also failed to challenge the inclusion of the right of publicity in the estate in its recent settlement with the IRS.

After highlighting the importance of distinguishing rights of publicity from other applicable laws in the postmortem context, I consider (6) primary challenges for postmortem rights of publicity. First, the state laws vary widely in terms of whether postmortem rights exist, who is covered by them, what sorts of uses are infringing, and how long they last. This combined with the uncertainty of the First Amendment and copyright-based limits on such claims makes valuation difficult, if not downright impossible.

Second, I consider the troubling implications of forced commercialization that flow from taxing a postmortem right of publicity. Estates will be forced to commercialize the dead to pay their tax bill even if that is not what the deceased or their heirs would want. This works at cross-purposes with the best justifications for having a postmortem right in the first place. This suggests that some law reform is needed if the IRS continues to include rights of publicity in estates to avoid this danger.

Third, I consider the problem of those who die, like Prince, without an estate plan at all. This could lead to estranged and distant relatives reaping a windfall against the deceased’s likely wishes. This too suggests a possible area for law reform, as the laws could limit the survival of the rights to instances in which a person made an intentional choice about who should receive them, or alternatively laws could enumerate specific parties who could inherit in the absence of a will.

Fourth, I consider the danger of elder abuse and potential pressure to have aging celebrities transfer their rights. A related concern here is that corporations unrelated to the deceased could reap windfalls at the expense of the public without a strong justification for these companies owning and profiting from these dead people’s identities. Law reform in the area could also limit this possibility. I also discuss some of these concerns in my book and an op-ed, The Market in Dead People.

Fifth, I warn that having a transferable right in the context of postmortem rights does not require transferability of the right of publicity during a person’s lifetime, something that poses a danger to all of us, something I discuss in my book and an oped, Only Robin Wright Should Own Robin Wright.

Finally, I highlight some of the free speech concerns of limiting uses of the identities of famous and important deceased people.

The entire talk & slides are up at: https://www.youtube.com/watch?v=TnGMSW5oNA4&feature=youtu.be