Abstract

This article examines the complex treatment of the Right of Publicity (ROP), which is the legal interest in a person’s name, image, and likeness (NIL), in United States estate taxation. Drawing on recent disputes involving the estates of Michael Jackson, Whitney Houston, and Prince, the study analyzes case law, state statutes, and scholarly debate to challenge the Internal Revenue Service’s practice of treating postmortem ROP as a transferable intangible asset subject to estate tax. The striking disparities in valuation between the IRS and the celebrity estates illustrate the absence of consistent legal standards. In Jackson’s case, for example, the court’s final valuation was less than one percent of the IRS assessment, revealing the unreliability of current methods. The article traces the historical development of ROP from its roots in the Right to Privacy through the landmark Haelan and Zacchini cases, arguing that its evolution into a form of intellectual property has distorted its original purpose. The fragmented landscape of ROP law, with only half of the states providing statutes and even fewer recognizing postmortem rights, further complicates federal tax treatment and raises constitutional concerns under the Commerce Clause. Drawing upon the work of legal scholars such as Jennifer Rothman and Mitchell Gans, the study asserts that ROP should be viewed as an inalienable personal interest rather than a marketable property right. If ROP cannot be transferred or inherited, it cannot possess immediate taxable value at death. The article concludes that the IRS lacks a legitimate basis for taxing ROP until Congress enacts a uniform federal statute. Recognizing ROP as inalienable would resolve inconsistencies, prevent valuation abuses, and align the doctrine with its original privacy-based principles.

Introduction

In a 1789 letter to the French scientist Jean-Baptiste Le Roy, Benjamin Franklin said, “Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes” (National Constitution Center 2022). If deceased celebrities such as Michael Jackson, Prince, or Whitney Houston could speak to us from the grave, they would surely concur with Mr. Franklin. In the past few years, the estates of this trio of mega-stars have each been involved in legal battles with the IRS to determine the valuation of an intangible asset known as the Right of Publicity (ROP); specifically, “the right of a person to control the commercial exploitation of their identity and prevent its commercial appropriation by others without permission” (Gordon 2023). That identity is sometimes referred to as NIL, the acronym for name, image, and likeness. In each of these cases, the government argued that the estate had grossly undervalued the deceased’s ROP. The IRS then attempted to assess an exorbitant amount in additional taxes and penalties based on its own seemingly arbitrary appraisal despite having no governing federal statute or legitimate basis for including ROP as a taxable asset. This study will argue in opposition to the IRS and make the case that the Right of Publicity can only exist as an inalienable right that cannot be transferred or inherited at death; thus, it has no instantaneous asset value for estate tax purposes. The Houston, Prince, and Jackson disputes, especially the latter, introduce the complexity of this issue. 

The Cases and the Numbers

In the case of Whitney Houston, the estate valued her ROP at about $200,000, while the IRS claimed an amount of $11.7 million. The IRS was seeking more than $11 million in taxes and penalties. The case never made it to trial and was settled out of court with the estate agreeing to pay $2 million (Rothman 2022). For the estate of Prince, the IRS calculated his ROP at $6.2 million which amounted to about twice the estimate of the estate’s executor (Perlow & Hilton 2023). The out-of-court settlement did not disclose the final agreed amount.

Unlike Houston and Prince, the Michael Jackson case made it to trial and now provides a wealth of information on how the courts might rule in future cases. The Jackson estate valued his ROP at a mere $2,105. The IRS had valued the ROP at $434,261,895. The IRS Commissioner was extremely incensed at what he felt was a grossly undervalued amount and assessed the estate a penalty of almost $200 million. The IRS failed to acknowledge that Jackson’s reputation had been ruined by child molestation allegations which affected the value of his image in the last few years of his life. In fact, in the three years prior to his death, his total ROP income was $24. No one was seeking his endorsement. In trial preparations, the estate contracted two experts to re-evaluate the ROP, and they arrived at a value of $3,078,000. At trial, the court found that $4,153,912 was a reasonable value, an amount that was less than 1% of the IRS’s initial assessment. Furthermore, the court determined that the estate was not unreasonable in its original valuation of $2,105 based on Jackson’s damaged reputation, thus the court found that the estate did not owe any penalties (Klein & Cohn 2022, 66). The public eventually forgives and forgets, and today Michael Jackson’s estate earns tens of millions from his ROP, including a recent estimate of $85 million earned over 12 months from the licensing of his NIL and music for the Broadway production of MJ: The Musical (Fleck 2023). Although the IRS lost in the estate tax dispute, they are making up the difference from Jackson’s posthumous annual ROP income taxes.

These three cases demonstrate a problematic trend. Namely, the IRS is requiring the estates of deceased celebrities to include the value of their ROP as an intangible intellectual property asset. This—along with all other assets such as cash, stocks, real property, and personal property—is then used to calculate and assess the celebrity’s net worth and potential estate tax owed at the time of death. To put the numbers in context, the estate tax is currently 40% of the value of all assets in excess of $13.61 million. For A-list celebrities with lucrative ROP income, the estate tax implications can be extreme. Consider NBA superstar LeBron James who is paid $300,000 per sponsored Instagram post. Additionally, he has a lifetime endorsement deal with Nike worth more than $1 billion (Lane 2020). If James died tomorrow, the estate tax on his ROP alone would be unbelievable. Ben Franklin, “the first American celebrity” (Burns 2019, 10), could never have imagined that anyone would be able to sell their persona to promote sport and entertainment products for an amount greater than the entire combined U.S. budget from 1789 through 1849 (US Government 2016).

The Celebrity

In Franklin’s 18th century, this American concept of celebrity was more of a novel symbol of status, but in the current era of high-tech mass media, it has grown into a powerful and highly coveted commercial force and a major industry with Right of Publicity as its commodity. Of course, if we are to fully understand this commodity called Right of Publicity and what drives its value, we must first explore the concept of celebrity.

In the early 20th century, the advent and subsequent technological advancements in photography, film, and audio recording allowed celebrity culture to begin to flourish. Movie companies quickly discovered that celebrity culture drove profits. In Celebrity Status, Charles Kurzman says that the celebrity status system “was born out of capitalism and mass media, and its dynamics reflected conditions of the modern era” (Kurzman et al. 2007, 347-367). Kurzman calls the celebrity “a creature of capitalism.” Technology has continued to grow and flourish into the 21st century in ways that were once unimaginable. Rome’s Marcellus has now given way to a new kind of theater called the Internet, and capitalism has been replaced with a hipper description called monetization.

Today’s society has become obsessed with celebrity culture driven by the use of social media platforms that provide a round-the-clock stage crowded by influencers, famous people and media personalities, and the hopefuls who constantly vie for a viral moment that catapults them into the international limelight. Daniel Boorstin’s 1961 book The Image: A Guide to Pseudo-Events in America has been called the “epitaph for any serious consideration of the phenomenon” [of celebrity] (Gabler 2001). Boorstin defines a celebrity as a “person who is known for his well-knownness” (Boorstin 2012, 57). Although written some forty years ago, many later discussions of celebrity and celebrity culture refer to Boorstin’s quizzical definition.

Author and Columbia University Professor Sharon Marcus offers a deep dive into the rise of celebrity culture in the 2019 Literary Hub article On the 18th Century Origins of Celebrity Worship. Marcus points to the rise of celebrity worship being related to technological developments in print publications, photography, and rapid transportation. Newspapers gained greater circulation, and articles about celebrities helped drive higher sales (Marcus 2019). In the 2019 essay Celebrity Matters, Grout (2019) contrasts fame with celebrity. For Grout, celebrity can be a result of fame, but fame is not necessarily a product of celebrity. In Celebrity Status, Kurzman et al. (2007) traces the development of celebrity into the late 20th century as it becomes its own social status system. In her dissertation “The Mechanics of Renown,” First (2009) explores the rise of celebrity culture in America. Grout, Kurzman, and First share one common point, namely, celebrity is a commodity that has developed into a major commercial industry vested in the Right of Publicity.

Background

With the public eye constantly focused on celebrity culture, marketers and even celebrities themselves must embrace an understanding of the Right of Publicity, along with its many possibilities and its various pitfalls and hazards. Where did it originate? How did it develop? What governs its existence? ROP is heavily weighted in celebrity culture as it relates to both law and marketing, thus information on the topic is vast and overwhelming, but the most comprehensive resources can be found in law journal articles. Jennifer E. Rothman, a University of Pennsylvania Law Professor and expert in the right of publicity, has developed a website, rightofpublicityroadmap.com, as a comprehensive resource on the subject. One of the most useful features of the site is its section that explores the various ROP laws or lack of laws in all 50 states, a must-have resource since ROP has no governing federal statute.

Ironically, ROP originated as a derivative of what is often called its antonymic sister: the Right to Privacy, a legal theory that first surfaced in America in the late 19th century and was reinforced by a Harvard Law Review piece written by Samuel Warren and Louis Brandeis entitled Right to Privacy. Warren and Brandeis set forth many ideas that would later become the cornerstone of thought regarding the right of publicity. For instance, Warren and Brandeis argue that an individual’s personal image is intangible property worthy of the same protections afforded tangible property, namely, the right to decide how it is used (Brandeis & Warren 1890). This characterization of the self as a type of property that can be bought, sold, licensed, and even inherited was furthered in the 1953 case Haelan Laboratories Inc. v. Topps Chewing Gum, a case that involved an exclusive agreement for the licensing of professional baseball players’ photographic images to be used on baseball cards, and the unauthorized use of those images by a competing company. In Haelan, Judge Jerome Frank coined the phrase “right of publicity,” and while this case actually involved a question of only a contractual obligation, Judge Frank’s commentary on ROP sparked a school of thought that one’s name, image, and likeness is a property right, not a personal interest (Rothman 2012).

In the journal article The Right of Publicity’s Intellectual Property Turn, Rothman (2019) discusses the Haelan case and its effect on later scholarly opinions, but she concludes that the true turning point for ROP in being transformed into a property right occurred in the 1977 Supreme Court case of Zacchini v. Scripps-Howard Broadcasting, the only ROP case to ever reach the Supreme Court. According to Rothman, Zacchini painted ROP as a quasi-copyright issue, a recurring idea that continually clouds the true character of ROP and assumes an intellectual property sisterhood between ROP and Copyright that simply does not exist. Rothman believes that this abandonment of ROP as a personal interest was and continues to be a mistake. In concurrence with Professor Rothman, this study argues that ROP can function as both a personal interest and a property right, or more accurately, a property right exclusively governed by a personal interest.

Conflicts and Complexities

Any attempt to provide a unified characterization of ROP can be an exercise in futility. In the 70 years since the phrase “right of publicity” was first used, it remains an evolving legal theory absent a place in federal law, thus leaving it to be addressed at the State level. But the more troubling fact is that only 25 States currently provide any specific statute covering the Right of Publicity, while only 24 States recognize or address a post-mortem right of publicity. Of the States that lack a statute, the matter has been left to be resolved under common law (Rothman 2021). Considering this confusing and inconsistent nature of the Right of Publicity within the context of its various interstate and intrastate interpretations, many critics argue that it should be codified under a federal law that would supersede the existing State laws and bring unification to the issue. Some suggest that it should be included as an extension of the Lanham Act, the federal statute that governs U.S. Trademark law. In a Stanford Law Review article, Stacey Dogan says, “The structure and content of trademark law provide a theoretical justification for a bounded right of publicity” (Dogan & Lemley 2005, 1190). The right of publicity, like other forms of intellectual property, has its various problems, controversies, and challenges. On numerous occasions, Congress has been nudged toward codifying a federal statute, but the wheels turn slowly, and no one is rushing to make it a priority. While the various day-to-day workings of ROP are worthy of further discussion, this study is interested in its post-mortem problems in relation to the estate tax controversy that has been on-going over the past 30 years.

The Post-Mortem Problem

As Congress sits on the fence with respect to the right of publicity, the Internal Revenue Service has been busy monitoring the estates of deceased celebrities since 1994 to ensure they include ROP among their inventory of assets. In that marked year, the U.S. District Court for the Eastern District of Virginia became the first to hear a tax case involving the right of publicity. The estate of the famous author VC Andrews filed its tax return and did not include the value of Andrews’ name as an asset. In fact, the executor was completely unaware that it had even become a requirement. The IRS audited the estate’s return and determined that her ROP should have been included. They subsequently valued it at $1.2 million. The court concurred with the IRS that Andrews’ name was a taxable asset, but they reduced its value to $703,500 (Chapa 2019). With Andrews, the IRS overvalued her ROP by about 70%. They would later repeat this pattern of substantial overvaluation in the Houston, Jackson, and Prince cases. Nonetheless, the Andrews case served as notice to the estate planners of all celebrities that the IRS would be actively seeking to ensure that ROP is included as an asset on the estate tax return. Curiously, in all of these cases, none of the estates argued the actual legitimacy of ROP as an estate taxable asset.

In the article The Right of Publicity: An Often Overlooked Asset in Estate Planning and Tax Compliance, T.J. Hope and Scott Weingust of the global investment bank Stout discuss the Jackson, Houston, and Prince cases and offer an analysis of the problems facing the estates of deceased celebrities (Hope & Weingust 2022). In Burdens of the Dead: Postmortem Right of Publicity Statutes and the Dormant Commerce Clause, Christian Ronald identifies the conflicts between state ROP laws and the U.S. Constitution’s Commerce Clause (Ronald 2018). In Nothing Is Certain in Life Except Death and Then Taxes, Chapa looks at possible methods for evaluating the post-mortem value of the ROP asset, an issue at the forefront of every estate tax dispute (Chapa 2019).

The Real Issue

Right of Publicity scholar Jennifer Rothman believes that the estates of celebrities should turn their focus away from arguing over valuations and instead argue against including ROP as a taxable asset at all (Rothman 2022). Rothman’s reasoning is grounded in her article The Inalienable Right of Publicity where she makes the argument that the right of publicity is not freely alienable, a position that contradicts widely accepted doctrine (Rothman 2012). Inalienable is silent on the tax consequences of a non-transferable ROP but clearly, it would no longer be an active transferable asset of a celebrity’s estate, and it would return to its true character as a personal interest.

In Publicity Rights and the Estate Tax, Mitchell Gans addresses the intersecting complexities and conflicts between federal tax law and state law as it relates to the treatment of ROP. Gans, a rising authority on the topic, acknowledges Rothman’s non-transferability argument while exploring the pros and cons of celebrity estate planning related to ROP such as that of Robin Williams and his 25-year restriction on the use of his NIL after his death. Although Gans concurs with Rothman, he offers several ideas on how to avert the estate tax as it relates to ROP. Ultimately, Gans calls for federal estate tax reform that would exempt ROP from inclusion in the asset valuation of a celebrity’s estate (Gans 2019).

In The Immortal Icon: A Critical Analysis of Postmortem Publicity Rights in the United States (2019), Irish author Aoife McCormick provides an international look into the American Right of Publicity. McCormick aligns with Rothman and Gans in her Introduction where she notes, “The inheritability of publicity rights has proven to be a troublesome area of law in the U.S.” (McCormick 2019). Interestingly, McCormick suggests that celebrities do not have the right to restrict, destroy, or control their post-mortem ROP. To the contrary, she believes that the public participated in the creation of the celebrity’s persona, thus the public is entitled to continue its enjoyment of that persona even after death. No doubt, McCormick’s belief is quite unique and arguably controversial, but she provides some valuable points on the overall landscape of the topic at hand.

Rothman Says…

The details of these various post-mortem studies are less important than the fact that they call attention to the abundance of problems and inconsistencies that riddle the estate tax treatment of Right of Publicity. Accordingly, this recent handful of federal tax disputes only scratch the surface of a problematic issue that needs an immediate resolution. In The Right of Publicity’s Intellectual Property Turn, Rothman (2019) says, “Right of publicity laws are not uniform or consistent across states, and they lack the limits and defenses that federal copyright, patent, and trademark laws provide…Today, the right of publicity is a ‘misshapen, bloated monster.’ It is both too broad, and too narrow…” (307, 319). The time has come for Congress to codify ROP at the federal level and resolve the inherent complications created by the multitude of inconsistent state laws or lack thereof, but before attempting to craft legislation, a consensus is needed for defining the purpose and characteristics of ROP. In Property Turn, Rothman adds “going forward, even if we understand the right of publicity as an intellectual property right, we cannot simply leave things there. We need to engage more deeply with why we have a right of publicity, and what objectives it seeks to further” (Rothman 2019, 316). Yes, before we can attempt to structure any effective legislation, we must be clear in defining the nature and purpose of ROP. We must not be afraid to start at the beginning and reset our thinking from a perspective of reason based on an orderly and organized series of facts and logic.

A re-evaluation of the character of Right of Publicity is critical. Is it a personal right or is it some type of intangible intellectual property? Rothman warns, “The shift to the IP paradigm has also created another danger: that the very individuals the right is supposed to protect could lose control of their own identities forever, thereby undermining the very basis for providing such a right in the first place” (Rothman 2019, 280). If the Right of Publicity has its roots in Right to Privacy, then it was clearly never intended to be a tool for stripping away one’s identity and putting it under the control of another person or some corporate interest, nor was it intended to be positioned in a way that would do harm to the individual. Thus, we return to Rothman’s earlier questions. Why do we have a Right of Publicity, and what objectives does it seek to further?

Conclusions

At their core, the Right of Publicity and the Right to Privacy serve the same fundamental objective, namely, to control an individual’s name, image, and likeness and protect it from misappropriation. The fact that the Right of Publicity implies exploitation and the Right to Privacy implies abstinence is irrelevant. The origins of both the right of publicity and the right to privacy are deeply intertwined. Contrary to the opinion of Judge Frank, positing that the right of publicity is not a property right but, instead, a personal interest is fundamentally consistent with the right to privacy. The conceptual framework advanced in Haelan and supported by the IRS, specifically, the idea that an individual's persona can be freely transferred as a proprietary asset, is flawed. While the licensing and reproduction of a persona are recognized practices, the notion that an individual's persona can be 'purchased' in the manner of other property is rejected, drawing an analogy to the impossibility of purchasing the individual themselves. Treating an individual's name, image, and likeness as fully alienable property, subject to complete purchase and control, conceptually approaches the ownership and control of the individual—a practice prohibited by the 13th Amendment. The time has come for the Right of Publicity to be recognized as inalienable. In the journal article The Political Economy of Celebrity Rights, Mark Bartholomew (2018) says:

Before the 1980s, judges seemed to view the right of publicity as an inferior sort of property, if it was even property at all. This was evident in the reluctance to recognize posthumous publicity rights. The right to bequeath one's property at death has been described by the United States Supreme Court as "one of the most essential sticks in the bundle of [property] rights." By making the right of testamentary disposition inapplicable to publicity rights, courts made sure that the publicity right had an inferior status. As one court explained, the right of publicity was a type of property legally inferior to personal property. Instead, the right was more like "titles," "offices," "trust," and "friendship," "attribute[s] from which others may benefit but may not own." In this period, judges often described the right of publicity and the personal right of privacy in the same breath. Privacy rights were not recognized as property. Rather, they were dignitary rights that resided with the individual and could not be exchanged with others. Just as the right to privacy was not meant to last after death and was not really "property," neither was the right of publicity (22-23).

If the Right of Publicity does not survive death, it does not mean that a deceased celebrity’s name, image, and likeness disappear. The posthumous persona can continue to have value and be exploited. The individual “right” (a/k/a personal interest) of the deceased celebrity no longer exists, but the “publicity” part of the equation remains and can be managed and licensed for taxable profit. 

Right of Publicity comes with a wall of questions, problems, conflicts, and opposing viewpoints that can easily block our vision. Tearing down the wall is not an option. We must create a window in that wall allowing us to see the situation from both sides, the property side and the personal interest side. If left to be governed by the various states, the issue will remain the “bloated monster” that Rothman describes. Recognizing the right of publicity as inalienable solves many of the problems and inconsistencies, but even under the alternative, the IRS lacks legitimate authority to assess estate taxes until such time that Congress passes a governing federal statute. The current lack of uniformity and the inherent contradictions within state right of publicity laws preclude the Internal Revenue Service from upholding the constitutional guarantee of equal treatment under the law for all citizens. The time has come to clear up the confusion created by more than a century of varying theory and thought. Congress must act now. Our celebrity culture demands it.

 

References

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