Monday, February 2, 2009
Should publicity rights be transferable by will?
Joshua C. Tate (Assistant Professor of Law, SMU Dedman School of Law) has recently posted on SSRN his article entitled Immortal Fame: Publicity Rights, Taxation, and the Power of Testation.
Here is the abstract of his article:
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.
These comments/questions are addressed to Angela Solomon. Based on your comments, it appears that you believe your daughter is entitled to compensation because a movie, documentaries, and a book included references to her father. I'm saddened to learn that neither her father nor you have provided the resources your daughter needs, and more saddened to know she had to end her college studies. However, certain things need to be explained. The documentaries only showed pictures of the gentleman, and never featured video or audio clips of him. To my knowledge, none of these projects proclaimed to be specificallly telling his story, but someone else's....just making references to Mr. Porter when appropriate. The movie "Paid in Full," made no reference to Mr. Porter, nor any of his associates. It was a ficion movie loosely inspired by real people, if memory serves me correctly. For these reasons, and because Mr. Porter himself didn't write or star in any of the projects, there are no issues of copyright or trademark infringement here. I cannot see how you nor your daughter could expect any compensation. Did anyone write a book proclaming to be Richard's unauthorized biography? Did anyone produce a movie proclaiming to be Mr. Porter's life story? Regarding the book: How can someone write their life story without mentioning important people that shaped their life? By your logic, every movie company or publisher should pay everybody mentioned in a true story. That is ridiculous to say the least. If it's money you're after, your best recourse is not to have your hand out to others, but to develop your own project about Mr. Porter, telling his story from your vantage point. The irony of course, is that according to your thinking, you would be obligated to pay everyone besides Richard that would be mentioned in the book....
Posted by: Joe Smoe | May 1, 2009 7:19:52 AM
Besides Small Joe its not the money its the principal and its disrespectful something you all dont know anything about thats why we have a failing community we never look out where it counts. He made sacrifices for his family the best way he could so he could be a better parent to his daughter than his parents. so if anyone is going to benefit from his story at least his only child, Admin of Estate should benefit. My child is good she has a real good mom. Like i said time will tell. if you cant tell, the man behind the movie, his life is on rewind. ignorant minds how do you ever expect for us to get ahead when they cant even send a child to school.
Posted by: Ang | Jun 2, 2009 10:51:15 AM
I think that publicity rights should be transferable by will. I dont think its right for anyone to just profit from a deceased personality. My daughters father (Richard Porter)was killed in 1990, his little brother was kidnapped and killed by his uncle. In 2002 a movie titled "Paid in Full" was produced by Rocca Fella Film, Dame Dash, Jay Z, etc. a DVD called Game Over,Alpo Story, A Preacher Story distribute by Warner Bros., a book published by Simon & Schuster titled Game Over The Rise and Redemption of a Harlem Hustler. all of these projects includs Richard's story. My daughter is administration of her fathers estate. No ever said anything. We had a lawyer send a letter asking for a scholarship for college but they sd no. My daughter was attending Hofstra but she is no home because of financial reasons. No one cares how she feels about seeing her father getting killed, making her father into a killer, and a drug dealer hes never been convicted.
Posted by: Angela Solomon | Feb 3, 2009 9:36:45 AM