Tate on Taxation of Posmortem Publicity Rights

A while ago, I noted an interesting article by Gans, Crawford & Blattmachr on the tax treatment of rights of publicity.  Josh Tate (SMU) has now posted a response titled Marilyn Monroe’s Legacy: Taxation of Postmortem Publicity Rights.  Here's his first paragraph:

In an April 2008 essay in The Yale Law Journal Pocket Part, Mitchell Gans, Bridget Crawford, and Jonathan Blattmachr argue that recent state legislation recognizing postmortem publicity rights fails to take into account the likely estate tax consequences. Although Gans, Crawford, and Blattmachr are correct to argue that allowing publicity rights to pass by will or inheritance could have adverse tax consequences for some estates, those ramifications are not as far-reaching as might be imagined. Moreover, their “legislative solution” will not solve the problem.

Tate also has an abstract up on SSRN:

In an April 2008 essay in the Yale Law Journal Pocket Part, Mitchell Gans, Bridget Crawford and Jonathan Blattmachr argue that recent state legislation recognizing postmortem publicity rights fails to take into account the likely estate tax consequences. This response explains that, although Gans, Crawford, and Blattmachr are correct that making publicity rights devisable could have adverse tax consequences for some estates, those consequences are not as far-reaching as might be imagined, and the legislative solution they propose will not in fact solve the problem. Estate tax will not be levied on the estates of long-deceased celebrities like Marilyn Monroe (the subject of the recent California legislation with which Gans, Crawford, and Blattmachr lead their piece), and the analogy to wrongful death benefits misconstrues the case law on that subject. Gans, Crawford, and Blattmachr are employing the specter of federal death taxes - which have applied to devisable publicity rights in California since 1985, and are irrelevant to the recent legislative reforms there - in an attempt to frighten state legislatures into unnecessarily restricting testamentary freedom.

Ben Barros

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