Post-Mortem Rights of Publicity—A Comparison of New York and California

Abstract

Abstract After more than thirty years of fierce lobbying for and against a post-mortem right of publicity, such a right was finally introduced in New York, some twenty-five years after the California post-mortem right was recognized. Lobbyists on both sides were able to reach a compromise that preserved freedom of speech and simultaneously safeguarded potentially valuable post-mortem assets. Prior to the introduction of the New York law, estates used other strategies such as copyright protection, trade marks, and false endorsement under the Lanham Act to police unauthorized uses of the rights of publicity of deceased celebrities. While the introduction of the post-mortem right is a simpler and more certain approach than the traditional reliance on a patchwork of laws, the most important consequence, and one that is likely to be overlooked, is the tax implications. This chapter examines the strategies that have been used in the absence of post-mortem protection and emphasizes the new tax considerations that must be accounted for in estate planning in New York.