The following is a Viewpoint from Gerard Cukier (partner) and Sameena Munir (trainee solicitor) at law firm Kingsley Napley LLP.
News has emerged recently of an innovative approach taken by US actor and comedian Robin Williams to use of his name and image which applies even after his death.
This contrasts starkly with the situation regarding Michael Jackson’s image and likeness, which is the subject of a longstanding valuation dispute between the Michael Jackson Estate and the US Inland Revenue Service, some six years after his passing.
Williams’ planning is a reminder to all celebrities and musicians that it is possible to have control over how their personal brand is used after death and moreover to determine in advance who should benefit from any revenue generation.
The value of a famous person these days is not just restricted to the amount of revenue their music, films or whatever generates. There can be value in their name, image, voice, photographs and signature as artists like Kylie Minogue and the members of One Direction know only too well. Companies have utilised CGI and VFX technology to use famous people in adverts and films long after they have passed away. We saw Marilyn Monroe, for example, in a recent ad for Dior perfume. The interest that the upcoming Freddie Mercury movie will no doubt spawn may prove to be a case in point.
Before his death, Robin Williams took steps to protect his publicity rights for 25 years after his death. He signed a deed transferring his publicity rights to the Windfall Foundation, which is a charitable organisation that raises money for good causes, such as Make a Wish. This means that only the Windfall Foundation is entitled to exploit Williams’ image and if his brand is used by somebody else without consent then this will constitute unauthorised usage.He stipulated that if the Windfall Foundation is ineligible for a charitable deduction by the Internal Revenue Code (similar to the UK’s inheritance tax regime for charitable donations), the publicity rights can be transferred to another charity or charities with a similar aim.
By doing this, Williams separated the value of these rights from the value of his estate which has certain tax advantages.
The Robin Williams Trust further provides that his children should receive his memorabilia, awards and other particular personal items. However a dispute has arisen as his widow claims that items in the home she shared with Williams should not be given to the children. She filed an aggressive legal action in December last year claiming the contents of the home she shared with Williams should be excluded from the things the actor left to his children. If the parties are unable to settle this out of court, a judge will have to clarify the definition of ‘memorabilia’.
Lessons for artists
Robin Williams adopted an innovative approach to his publicity rights and the way in which his estate will be taxed. The structure he adopted will likely become popular with other artists in the future. The dispute between his family members left behind is also a lesson to others that trusts and wills should be clearly written so that arguments over definitions of items can be avoided.