Protecting Publicity Rights in Estate Planning

Estate planning and publicity rightsThe use of the names, images, and likenesses of famous celebrities has value long after they die. Elvis Presley, Michael Jackson, Marilyn Monroe, and Babe Ruth all come to mind. However, it is not just the famous, or infamous, that have publicity rights with value. In this tech savvy era, the public is more keenly aware of those who may only have a fleeting moment of fame through a moment of heroism, witnessing an event, or who played a small role in a larger issue. As a result, it is not just the rich and famous anymore who should think about protecting their publicity rights through estate planning.

Publicity Rights

Many people are unaware of what publicity rights entail. The personal rights of publicity allow a person to control the commercial use of a name, likeness, or image. These rights vary by state, but the majority of states do recognize that a person’s publicity rights last after that person dies. For example, the limit on postmortem publicity rights in California is seventy years, Oklahoma is one hundred years, and in Tennessee it is for as long as there is commercial exploitation. As a result, publicity rights are something that can be inherited through an estate plan. This is important because for some people, their publicity rights may become even more valuable after their death.

Examples of the value of postmortem publicity rights are everywhere. The estate of Elvis Presley carefully monitors the use of his likeness and related rights, and the Rosa and Raymond Parks Institute for Self Development has been active in asserting the rights to Rosa Parks’ likeness. The holders of those publicity rights have taken others to court over the use of their likenesses. In addition, Michael Jackson’s estate earned $140 million in 2014 through his publicity rights after he died.

Estate Planning for Publicity Rights

When most people consider estate planning, they only think of the tangible items like the home, car, jewelry, money, and personal items. People involved in public careers like artists, politicians, and musicians will sometimes include intangible items like royalties, trademarks, and copyrights in their estate plans. However, most only focus on the tangible items in their wills.

The most important thing to remember when planning for publicity rights in an estate plan is the domicile of the estate settlor. The domicile state is where the will is submitted to probate, and it is also where the publicity rights of a person are determined by that state’s law. Joan Rivers has been lauded for her separation of residence and domicile in her estate plan because it allows her estate to save on taxes in addition to lengthen her publicity rights for her heirs.

Conversely, Marilyn Monroe’s estate took a large hit in 2012, when the Ninth Circuit Court ruled that Marilyn Monroe was domiciled in New York when she died, thereby applying our state’s law to her publicity rights. Her estate went from the third highest grossing estate of $27 million per year to only $17 million after the ruling.

To learn more about these and similar estate planning issues, please contact a trusted New York estate planning lawyer.


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