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Marilyn Monroe's Legacy: Taxation of Postmortem Publicity Rights

Yale Law Journal Pocket Part, Vol. 118, pp. 38-42, 2008

SMU Dedman School of Law Legal Studies Research Paper No. 00-26

6 Pages Posted: 15 May 2008 Last revised: 30 May 2010

Joshua C. Tate

Southern Methodist University - Dedman School of Law

Date Written: September 8, 2008

Abstract

In an April 2008 essay in the Yale Law Journal Pocket Part, Mitchell Gans, Bridget Crawford and Jonathan Blattmachr argue that recent state legislation recognizing postmortem publicity rights fails to take into account the likely estate tax consequences. This response explains that, although Gans, Crawford, and Blattmachr are correct that making publicity rights devisable could have adverse tax consequences for some estates, those consequences are not as far-reaching as might be imagined, and the legislative solution they propose will not in fact solve the problem. Estate tax will not be levied on the estates of long-deceased celebrities like Marilyn Monroe (the subject of the recent California legislation with which Gans, Crawford, and Blattmachr lead their piece), and the analogy to wrongful death benefits misconstrues the case law on that subject. Gans, Crawford, and Blattmachr are employing the specter of federal death taxes - which have applied to devisable publicity rights in California since 1985, and are irrelevant to the recent legislative reforms there - in an attempt to frighten state legislatures into unnecessarily restricting testamentary freedom.

Keywords: Tax, Property, Intellectual Property, Inheritance

Suggested Citation

Tate, Joshua C., Marilyn Monroe's Legacy: Taxation of Postmortem Publicity Rights (September 8, 2008). Yale Law Journal Pocket Part, Vol. 118, pp. 38-42, 2008; SMU Dedman School of Law Legal Studies Research Paper No. 00-26. Available at SSRN: https://ssrn.com/abstract=1133161

Joshua Tate (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States
(214) 768-2791 (Phone)

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