Who Owns You When You're Dead? Key Takeaways from a USPTO Panel on Postmortem Right of Publicity
What happens to your name, likeness, and identity after you die? A panel convened by the U.S. Patent and Trademark Office brought together legal scholars, tax attorneys, and Kareem Abdul-Jabbar himself to wrestle with one of the most underappreciated questions in estate planning: who — or what — controls your identity once you're gone?
The following is a recap of that discussion, featuring Professor Jennifer Rothman of Loyola Law School, tax attorney Priya Royal (formerly of the IRS), business manager Deborah Morales, and Kareem Abdul-Jabbar. Their conversation covered the overlapping legal rights that survive death, the six core challenges posed by postmortem right of publicity laws, and the estate planning strategies that can make the difference between an orderly transition and a prolonged IRS battle.
The Overlapping Rights at Stake
Professor Rothman opened by cautioning against treating identity rights as a single legal concept. When a famous person dies, what survives are not one right but several — and collapsing them into a single line item, as the Michael Jackson estate did on its Schedule F filing (listing "image and likeness" at $2,000), creates both legal and valuation problems.
The rights that can survive death include:
Copyright. If a person's image or voice is captured in a photograph, film, or sound recording, those works may be protected by copyright — which lasts 70 years after the author's death, or 95 years after publication for works for hire. Importantly, the person depicted is not always the copyright owner, which complicates how estates assert these rights.
Trademark. A celebrity's name or likeness used in connection with products or services may be protected as a trademark, which can last indefinitely as long as the estate or its licensees continue using the mark in commerce.
Unfair competition and false endorsement. Under the federal Lanham Act and various state consumer protection laws, an estate may bring false endorsement or false advertising claims even after the person's death — regardless of whether a formal right of publicity exists under state law.
Right of publicity. This is the state-law right to control the commercial use of one's name, likeness, voice, and other indicia of identity. Unlike the others, it varies dramatically from state to state — and not every state recognizes a postmortem version of it at all.
Six Challenges of Postmortem Right of Publicity
Professor Rothman identified six core challenges that make postmortem right of publicity particularly difficult to navigate:
1. Variability of state law. Only about half of U.S. states recognize any postmortem right of publicity. Among those that do, the laws differ significantly: some limit the right to celebrities with commercially valuable identities; some restrict it to certain heirs; some require registration; and the duration ranges from ten years to forever. Some states, like Washington, open their doors to all claimants regardless of where the deceased was domiciled. Others limit claims to individuals who died domiciled in that state. Determining which state's law applies is the first — and often hardest — question in any postmortem identity dispute.
2. Forced commercialization. As the IRS grows more aggressive in valuing postmortem publicity rights as estate assets, heirs who have no interest in commercializing their loved one's identity may nonetheless face a tax bill calculated at "highest and best use" commercial value. Robin Williams was sufficiently concerned about this outcome that he created an elaborate trust vesting his name and likeness rights in a nonprofit, with a prohibition on commercialization for 25 years after his death.
3. Dying without a plan. Professor Rothman called this "the Prince problem." Prince died without a will in Minnesota — a state that does not have a postmortem right of publicity. The result was a chaotic inheritance dispute among estranged relatives, contested paternity claims, and significant uncertainty about who, if anyone, would benefit from his commercial identity. An attempt to pass postmortem publicity legislation in Minnesota was ultimately withdrawn after concerns about estate tax consequences emerged.
4. Abuse and elder exploitation. The transferability of publicity rights during a person's lifetime creates opportunities for exploitation — particularly of elderly or isolated celebrities. The panel pointed to concerns about Stan Lee as a recent example of potential family abuse, and to Bettie Page as a case where a corporation (not her heirs) came to control her identity and monetize it in ways — including a sex toy line — she likely would not have chosen.
5. Transferability and the least powerful. Making the right of publicity freely transferable at death necessarily makes it transferable during life too — which creates risks for aspiring artists, student athletes, and others with less bargaining power. NCAA student athlete agreements have historically required athletes to transfer their publicity rights in perpetuity as a condition of receiving a scholarship. Social media terms of service raise similar concerns for ordinary users.
6. First Amendment limits. All postmortem publicity rights are bounded by the First Amendment, and those limits affect valuation as well as enforcement. Martin Luther King Jr.'s estate successfully sued to prevent the sale of commemorative busts; the federal government paid $800,000 for permission to create the MLK Memorial on the National Mall. Rosa Parks' estate sued (unsuccessfully) over a Target plaque honoring civil rights. These cases illustrate both the potential overreach of expansive postmortem rights and the ways in which First Amendment defenses reduce the commercial value that should be attributed to those rights.
The Michael Jackson Estate: A Cautionary Tale
The litigation between the Michael Jackson estate and the IRS became a recurring reference point throughout the panel. The estate's Schedule F filing listed image and likeness at $2,000 — a figure the IRS countered with an assessment of over $400 million. The dispute illustrates several compounding problems.
First, the estate collapsed multiple distinct rights — copyrights, trademarks, false endorsement claims, and the right of publicity — into a single undifferentiated line item. This made the judge's and experts' jobs significantly harder and created valuation confusion that might have been avoided with proper disaggregation.
Second, no one challenged the IRS's threshold assumption that the right of publicity should be included in the estate at all. That question — whether a right of publicity is properly includable in a taxable estate — remains open and litigable.
Third, the Jackson estate's extreme underreporting (enabled in part by aggressive pre-death estate planning that removed approximately one billion dollars from his estate on paper) triggered scrutiny under the gross undervaluation provisions of the tax code, which can keep an estate open indefinitely.
A note on the IRS's approach
When the law on postmortem rights is unclear, the IRS defaults to the most aggressive valuation: it presumes a right exists, values it as if fully commercialized, applies no First Amendment or copyright preemption discount, and taxes accordingly. The estate's burden is then to prove otherwise — which is why having valuation experts and a clear paper trail in place before death matters so much.
Tax Implications and Valuation
Priya Royal, drawing on her experience as a former IRS estate tax attorney, emphasized that wherever there is commercial value, there is an asset — and wherever there is an asset, there is potential tax liability. The estate tax rate is 40%, applied to the value of assets at the date of death.
Several valuation challenges are specific to identity rights:
Illiquidity. Rights of publicity are intangible and illiquid. There is no market price. Valuation requires expert analysis using income, market, and cost approaches — and the IRS will scrutinize any report that fails to address all three.
The "one second after death" problem. Estate tax valuation is pegged to the date of death. But a celebrity's commercial value may spike immediately after death — as nostalgia, tributes, and licensing opportunities surge. The IRS may argue that the value attributable to the right of publicity reflects that post-death commercial potential, not the pre-death commercial reality.
Dual citizenship and domicile. International celebrities present additional complications. The right of publicity is not governed by any international treaty or WTO framework. A celebrity with dual citizenship or residency may face overlapping or conflicting legal regimes, with significant uncertainty about which state's or country's law governs.
Comparable selection. Valuing a right of publicity requires identifying comparable licensees and transactions — which is difficult when the subject is, by definition, unique. The panel noted that many valuation experts in this space have a financial interest in high valuations (because they make money licensing celebrity identities), which creates a conflict of interest when they are retained to value an estate.
Royal noted that the National Association of Certified Valuation Analysts (NACVA) has developed respected methodologies for this kind of analysis, and recommended seeking analysts with NACVA certification who understand the IRS's expectations for valuation reports.
Planning Strategies
The panel identified several strategies that celebrities and high-value individuals can use to manage postmortem identity rights, though each comes with trade-offs:
Trusts and business entities. Transferring identity rights to a trust or business entity during life can remove them from the taxable estate while allowing the individual to retain control (through an income interest or similar mechanism). Nevada, for example, imposes no corporate tax, which may make it an attractive jurisdiction for certain entity structures.
Charitable transfers. Vesting identity rights in a charitable organization generates an estate tax deduction — and the estate planner's goal in that context is actually to maximize the valuation, because a higher value means a higher deduction. Remainder interests in charitable trusts can also increase the basis of assets that pass to non-charitable beneficiaries, reducing capital gains exposure.
Life insurance trusts. Irrevocable life insurance trusts (ILITs) allow the proceeds of a life insurance policy to pass outside the taxable estate and be used to pay estate taxes — a commonly used strategy for illiquid estates.
Conservative valuation while exemptions are high. With the federal estate tax exemption currently at approximately $11.18 million per person (set to revert to pre-2017 levels after 2026 absent congressional action), there may be an opportunity to transfer assets out of an estate now, using conservative valuations to maximize what can be moved within the exemption.
The Robin Williams approach. For individuals who do not want their identity commercialized after death, vesting rights in a nonprofit with an express prohibition on commercialization may provide some protection — though this structure has not yet been tested in litigation.
Key Takeaways for Practitioners
Several themes emerged from the panel that are directly relevant to estate planners, IP attorneys, and business managers working with clients who have commercially valuable identities:
Disaggregate the rights. Copyright, trademark, false endorsement claims, and the right of publicity are distinct legal interests with different owners, different durations, and different tax treatment. Collapsing them into a single "image and likeness" entry invites exactly the kind of IRS scrutiny that generated the Jackson litigation.
Start early. As Kareem Abdul-Jabbar himself noted during the Q&A, he was 71 years old before he learned about postmortem right of publicity issues. The panelists emphasized that estate planning around identity rights is not about age — it's about the commercial value of the identity. Anyone with a commercially significant name or likeness should have a plan in place, regardless of how old they are.
IP attorneys need tax attorneys. The first time an IP attorney drafts a licensing agreement transferring a client's name rights to a company, that attorney should be coordinating with a tax attorney. The structure of that transfer — whether it goes directly to an entity, through a trust, or as a split interest — has significant tax implications that arise both during life and after death.
Business managers must be informed. Deborah Morales noted that even she — a sophisticated, fifteen-year veteran managing one of the most commercially valuable identities in sports history — was unaware of these issues until shortly before the panel. Business managers play a critical gatekeeping role in vetting attorneys and advisors, and they need at least a working knowledge of right of publicity and estate tax issues to do that effectively.
The IRS will find something to tax. As Royal summarized: never ask whether something will be taxed. Always ask how to make sure it is not — or at least, how to structure it so the tax burden is minimized, the valuation is defensible, and the estate is not left open indefinitely by a gross underreporting problem.
