According to recent news, actor Robin Williams’ granted his right of publicity to a nonprofit his trust created. Under the terms of the grant, his likeness may not be exploited for the next twenty-five years. Further, the nonprofit is awarded the power to go after anyone who infringes this right. And should the IRS decide that this nonprofit is not a true nonprofit and fail to award it tax exempt status, the grant will go to other, well-established nonprofits.
The right of publicity is not federal law, but state law. And not every state recognizes this right. It allows a celebrity like Williams to control his likeness against those who would use it for commercial exploitation. This type of legislation is fairly new, as it is only recently that technology has advanced to the point that it can digitally “resurrect” deceased celebrities or other famous people and insert them into new media. One of the things that makes California unusual is that it allows these rights to continue after the celebrity’s death, as opposed to merely lasting the lifetime of the artist. One can imagine Williams’ aversion to having a holographic version of himself performing stand-up comedy. Certainly the use of a holographic Tupac Shakur has generated a lot of commentary questioning the ethics of resurrecting him in such a manner.
But Williams’ use of nonprofits to control his rights is very interesting. Like other forms of intangible property rights (copyrights, patents), the right of publicity has value. Value that is very interesting to the IRS when it comes to estate taxes. Williams was probably quite aware of the ongoing dispute between the IRS and the Michael Jackson estate over the value of Jackson’s right of publicity. The IRS is claiming that the Jackson estate owes more than $500 million in back taxes and another $200 million in penalties on Jackson’s right of publicity. The case is currently in the US Tax Court. By granting his rights to a nonprofit, Williams’ estate is exempt from paying taxes on those rights. This was a very clever move on Williams’ part–not only does he get to restrict the use of his image, his estate will not be responsible for paying taxes on those rights. It is an ingenious form of estate planning by an artist.
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