Should someone be able to profit from using your name and likeness after you die? And if so, who exactly should be able to benefit from it?

This was the question at the center of the 2021 Tax Court decision regarding the usage and monetary value of Michael Jackson’s name and image after his death. This highly anticipated case shined a light on the complexities and ethics of the posthumous use of an individual’s “persona.”

While postmortem right of publicity is commonly associated with celebrities, it does impact people outside of that sphere in states like Virginia, where any individual can qualify for this right for a certain period of time after they die. Here’s what post-mortem right of publicity entails and how it impacts estate planning.

What is post-mortem right of publicity?

Having the right of publicity means you have the right to control and profit from the commercial use of your name, image, or likeness. The postmortem right of publicity, as the name implies, passes this right to an executor, trustee, or named beneficiary through a Will, a trust, or another estate planning instrument.

This postmortem right of publicity allows a person’s heirs or named beneficiaries to profit from their persona and crack down on unauthorized commercial exploitation of the decedent. It does, however, have estate tax consequences, as the gross value of the estate is included this right.

Who qualifies for post-mortem right of publicity, and what rights do they get?

Some states dictate that only celebrities qualify for post-mortem rights of publicity, while others protect all individuals. For instance, in New York, only “deceased performers” or “deceased personalities” qualify for postmortem right of publicity. In Virginia, however, any person, regardless of their status, can qualify for this right.

Under the postmortem right of publicity, a deceased individual can protect their name, voice, signature, photograph, or likeness against unauthorized commercial use without prior consent. How long the postmortem right of publicity lasts also depends on the state; Virginia has it set for 20 years after death.

How post-mortem right of publicity impacts estate planning

The post-mortem right of publicity is a relatively new part of estate planning. The laws surrounding this right of publicity have gained more attention because of the case of the Estate of Michael J. Jackson. In his case, the Tax Court directly addressed the taxability of image and likeness and valued his likeness at $4 million, which illustrates the large amount of money that can be at stake in these types of cases.

Considering the post-mortem right of publicity in estate planning is crucial if an heir or named beneficiary could potentially profit from the deceased person’s persona, likeness, etc. Restricting this right of publicity after death could reduce the estate tax value, as well as the value to the heirs or beneficiaries. However, any restrictions would not necessarily factor into the gross value of the estate, as the Tax Court does not include restrictions in their calculations.

One of the most common practices in the case of postmortem right to publicity is to treat it as if it were business planning. When dividing up business interests, it is best to sell or gift them to multiple grantor trusts, so they too can shoulder the potential tax liability. The same is true for post-mortem right of publicity. However, it may be advisable to sell your rights of publicity rather than to gift them to a grantor trust and to appoint an independent trustee, as sales won’t be subject to the Internal Revenue Code Section 2036 regarding the right to enjoy the property of a person’s transferred estate or the income thereof.

Get help with your estate plans

Estate planning can be a complicated process, especially when it comes to more recent rights like the post-mortem right of publicity.

Rather than struggle through this process alone, contact the Law Office of Patricia E. Tichenor for help. We have over 20 years of experience handling estate planning for Virginia residents and can guide you and your family toward the best solutions.

Contact us today to schedule a free 30-minute consultation about your estate planning needs.