February 7, 2009
Tate on Publicity Rights, Taxation, and the Power of Testation
Joshua C. Tate (SMU) has posted Immortal Fame: Publicity Rights, Taxation, and the Power of Testation on SSRN. Here's the abstract:
Publicity rights, or the rights to the use of one's image and likeness, are a relatively recent form of property. Several states now recognize rights of publicity as survivable, meaning that the heirs of deceased celebrities can inherit those rights. Because U.S. law has traditionally granted each individual the power of testation, a celebrity can also freely devise the rights to persons of her choosing. Nevertheless, some scholars have recently argued that publicity rights ought to pass automatically to specified statutory heirs regardless of the celebrity's wishes. Destroying the power of testation, these scholars allege, will insulate postmortem publicity rights from the federal estate tax and protect familial interests.
This Article considers whether state law should, as a general principle, override testamentary intent with regard to postmortem publicity rights. Evaluating the problem from both a property perspective and a tax perspective, the Article concludes that no such interference with testamentary freedom is warranted. There is admittedly some historical precedent for protecting the interests of surviving family members with regard to rights intrinsically connected to one's person, such as the right to dispose of one's body and the right to profit from one's artistic creations. The protective measures taken in these contexts, however, either lack a coherent justification or developed for reasons that do not apply to modern rights of publicity. Moreover, exempting publicity rights from the estate tax based solely on the abolition of testamentary freedom would be contrary to basic principles of tax policy. While Congress could amend the Internal Revenue Code to alleviate certain difficulties of valuation, it may be preferable to maintain a tax incentive for celebrities to donate their publicity rights to charity.
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