Don’t Forget About Publicity Rights in Estate Planning

Arent Fox Complex Litigation partner Barbara S. Wahl recently published an article in Law360 that outlines key publicity rights issues that attorneys and their clients should consider when doing estate planning.

Ms. Wahl writes that “estate planning typically focuses on the tangible things that we value in our lives.” Meanwhile, personal rights of publicity is the ability of an individual to control the commercial use of his or her name, image, likeness, or other aspects of his or her identity, even after his or her death. Ms. Wahl says that “the commercial value of an individual’s likeness or image past his or her death is bounded only by the imaginations of entrepreneurs.”

In particular, Ms. Wahl notes testators and other professionals should consider domicile when engaging in estate planning — not just for tax purposes, but also for post-mortem publicity rights. The recent estate planning of Joan Rivers illuminates this: “legal commentators recently applauded Joan Rivers’ testamentary selection of New York as her domicile rather than California as way to avoid the higher California estate taxes. But New York does not recognize any post-mortem publicity rights whatsoever, whereas California will enforce such rights for 70 years following the testator’s death. The acknowledgement of Rivers’ domicile as California rather than New York may have enabled her considerable earning power to continue for years past her death.”

To read the Law360 article, click here.

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