Hi folks -- this is Leon, the author of the Globe story. Steven emailed me to say you guys were discussing the issue and asked me to jump in. Here's an interesting wrinkle I didn't get to address in the piece: if you inherit the persona of someone very famous, you're responsible for paying taxes on the value of that asset, regardless of whether you make any money off of it. This means that in some cases, a family will be forced to commercialize the persona of the deceased even if they don't want to -- simply because they'd need the money in order to pay the taxes. Consequently, the right of publicity laws could lead to people's images being used to promote products even though their families would rather just leave them alone. Not sure how much I can add to this great discussion but I'm here, if you want to ask me something about my reporting! L
First off, thanks for dropping in. We appreciate it. Now my main question is the same as b_b's: Do you know how a deceased persona would be assessed? It's so very odd. It has no value unless you commercialize it, and there is no telling how successful any attempts might be. This just seems such a bad road to walk down because nothing can be quantified. Also, I don't understand where Elvis impersonators fall in this or in regard to the "Elvis Presley Law". Do they have to pay the owners of the estate? BTW, how are things in Boston? I lived a couple of years off Magazine in Central Square, and loved it. But that was more than a decade ago.
So, I put this question before a law professor at Pace named Bridget Crawford who specializes in tax law, and she told me that the IRS decides what the asset is worth. "There are a variety of accepted valuation techniques," she said. "The classic definition of fair market value is what a willing buyer and a willing seller would agree to." She added that if there was a dispute, it would go before a tax law judge. That said: "It’s never happened that there has been a valuation dispute about the right of publicity – it’s completely untested." I never figured out whether there's someone in particular at the IRS who would be responsible for making these calls, but I guess there would have to be, right? I should note: Crawford argues that it's possible for legislators to write postmortem publicity laws in a way that would avoid saddling heirs with huge tax bills. As I understand it, this would involve taking away the celebrity's right to decide who gets the asset, and instead requiring that it pass to a particular party, like, say his/her spouse and children This would make it a "survivorship right," and it would mean that the asset doesn't get taxed in the same way as a normal inheritance. Here's the quote from Crawford: "There’s a compromise there... By trying to protect the celebrity’s right, you create a huge tax problem but the only way to avoid the tax problem is to take away some of the very right you’ve just created." W/r/t Elvis impersonators, my understanding is if you're making money off it, you have to get their permission and pay them for the privilege. Boston's great! I live in Central Square as well.
Thanks for that. That is odd. Someone at the IRS determining what a dead person's persona is worth for tax purposes... I'm pretty sure the world would be ok without owning personas. It was for most of human history. Nice. Is the Middle East still there? I loved that place.Boston's great! I live in Central Square as well.
I wonder, is there any other instance when the IRS determines value for tax purposes on something so wildly subjective?
That is an interesting point. An identity is only valuable commercially if you choose to use it commercially. It has no inherent value. Given that this is a relatively new phenomenon, how does one them decide what the taxable value is? With real estate we can guess based on other similar properties; stocks and bonds have nominal values; even rights to a book could have projected sales; but what is an identity? With real estate and stocks the value may increase dramatically when not sold for long periods of time. If you let an identity sit with no activity, it could become more desirable, or the public could forget and it becomes worthless. This is another giant check in the con column.