Will we see holograms of Robin Williams, or any other posthumous Williams works, in the near future? Probably not, and here’s why:
Thanks to Robin William’s Trust, Williams and his attorneys found a novel way to protect his publicity rights after death.
What is the Right of Publicity?
The right of publicity is the ability to control the commercial use of your name or likeness. From using your image on coffee cups to using your statement about how much you love a certain fast food restaurant, you have the right to exploit or to not exploit your name and likeness.
If someone decides to use your name or likeness without your permission, statutory damages, in addition to the profits earned by the exploitation of the name or likeness can be awarded, regardless if you are famous or not. These damages, along with the amount of protection given, vary from state to state depending on their laws.
During Robin Williams’s life, he was very protective of his publicity rights. For the Disney film Aladdin, Disney executives had promised Williams that they would not use his voice (likeness) for any other commercial endeavors. However, after the film was released, Disney used his voice in a variety of commercial spots for merchandising that Williams did not agree to. Disney had to provide a formal apology, but Williams stated that he would no longer work with Disney in the future.
Is there any way to protect publicity rights after death?
Many states have a variety of laws to protect publicity rights, and the length of time for these can vary significantly, especially after death. For example, New York has no posthumous right of publicity, whereas Tennessee (home of the late Elvis Presley) allows for the devising of those rights and the person to inherit can keep control of those rights until they stop using them, which could be indefinitely.
Robin Williams was a resident of California at the time of his death. California does have statutory protections for publicity rights for up to 70 years after William’s death. Many celebrities have requested in their wills and trusts more specific protections of their rights beyond California’s statute. For example, Adam Yauch of the Beastie Boys restricted use of his publicity rights and of his music copyrights.
Charitable Trusts and Protection of Publicity Rights
The Robin Williams Trust, which provides detailed information regarding the inheritance of the Robin Williams estate, did not protect his posthumous publicity rights for the full 70 years. Instead, Robin Williams prohibited all commercial use of his publicity rights for the next 25 years, and then he gave ownership of his likeness to the Windfall Foundation, a nonprofit corporation focused on the arts and humanities, instead of his family.
Furthermore, if at some point in time the Windfall Foundation does not qualify as a charitable corporation under the IRS, the Robin Williams Trust would then distribute the ownership of his rights to another charitable organization.
A charitable trust is one of many types of trusts that can be established. In general, charitable trusts are used to benefit a specific charity, but they are often used to lower or avoid imposition of federal estate and gift taxes. This is one of many ways in which a trust can work as an effective testamentary devise in lieu of drafting a standard will.
So, the protection of his publicity rights are not simply a matter of protecting his name. Robin Williams probably wanted to make sure that his family would not be affected by a large amount of taxes that could potentially accumulate from the use of his likeness posthumously. Eriq Gardner of the Hollywood Reporter speculates this was a reaction to what happened with Michael Jackson’s estate. “The federal government claims the King of Pop's estate owes more than $500 million in taxes from his publicity rights and must also pay almost $200 million more in penalties.” By establishing a trust that gives his publicity rights to a charitable organization, Williams could limit the amount of taxes his family would be liable for.
The Robin Williams Trust could be at the forefront for how celebrities will manage their publicity rights in the future. With the potential value of posthumous publicity, celebrities who are already protecting their rights during life are definitely considering the possibilities of how to protect their rights after death.
Authored by Emily Yu, LegalMatch Legal Writer