Dead celebrities and icons inspire us, take a place of influence and earn a place of love and respect in our hearts and minds. With various forms of intellectual property, and subject to how it is protected, managed, and creatively re-imagined, deceased celebrities and icons have great earnings potential even after they’ve left the physical world. Coupled with the reach and speed of social media, dead celebrities and icons are extending their influence, building new loyalty and deriving income in ways not imagined a few years ago.
To best understand the opportunities this presents, we need to explore several core concepts, the first being The right of Publicity. This is defined as the right of a person to control the commercial exploitation of his/her identity, and prevent unauthorized commercial use, is governed by US state law, and is not uniformly defined or recognized from country to country. Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one’s image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one’s personality represented publicly without permission.
Name and likeness can be trademarked; images can be protected by copyright. In addition, be mindful of persona. Persona is a broad umbrella term that encompasses virtually anything that evokes or even reminds the public of a particular person, including numbers on sports jerseys, blonde hair, color schemes, and catch-phrases. For example, the federal Court of Appeals for the Ninth Circuit controversially held that a television commercial featuring a robot wearing a blond wig used Vanna White’s identity because viewers of the ad would bring her to mind when watching the robot turn letters on a Wheel of Fortune set.
A New Era Of Celebrity Afterlife
The monetization of publicity rights of deceased celebrities has markedly expanded as DJ’s and record producers spin new songs, new technology, such as holograms and computer-generated imagery, and now deepfakes can keep the virtual Celebrity alive and entertaining us forever. We know that novel digital technologies make it increasingly difficult to distinguish between real and fake media; deepfakes are hyper-realistic videos that apply artificial intelligence (AI) to depict someone saying and doing things that never happened.
One of the best examples of deepfake technology as it relates to celebrity was shared by Christine Fisher in October 2019 on Engadget.com. “Actor Jim Meskimen partnered with deepfake artist Sham00k to make his celebrity impressions a little more realistic. Meskimen and Sham00k shared the results in a YouTube video, and honestly, they’re pretty remarkable. While Meskimen did the voices, deepfake software applied the facial features of 20 celebrities, including George Clooney, Nicholas Cage, Colin Firth, Robert De Niro, Nick Offerman, Arnold Schwartzenegger, Robin Williams and George W. Bush.
Linking Authenticity And Success
It’s been said that musicians never die, they are just disconcerted; however with hologram concert tours in the works even that is no longer true! In addition, DJ’s and record producers are re-imagining recordings of dead musical talents and streaming spins are on the rise. Every year around Halloween, Forbes publishes a list of top earning celebrities from beyond the grave and for 2019 nine musicians grace the list of 13, up from just six a year ago. DJ and record producer Kygo remixed Whitney Houston’s “Higher Love” cover, which in part helped her make it on the Forbes list for the first time. Even as physical sales continue their long decline, those nine acts—including Michael Jackson, Whitney Houston and Nipsey Hussle—generated 15.2 billion streaming spins over the past year in the U.S., up 38.5% from the prior 12 months.
Note that the top earners have a Brand strategy built on authenticity where strong brand associations govern decisions about partnerships and activations. Bob Marley, who died in 1981 earned $20 million in 2019. In addition to almost 1 billion streaming spins in the U.S., House of Marley is a line of superior sound, sustainably crafted headphones, speakers and turntables all made with a commitment to charitable causes. In addition, Marley Natural is a line of quality cannabis products – all product activation is authentically Marley and tie back to his love of music and planet.
Brand Messaging For Deceased Talent
Tapping into the power of deceased celebrities and icons to market and sell product is about selling a message first, product second and it boils down to perceived expertise, trustworthiness and attractiveness. Pepsi’s marketing campaign between 1963 and 1967 used ‘Come alive! … In China, the slogan was mistranslated to mean ‘Pepsi brings your ancestors back from the grave’, and in a culture where they worship their ancestors, people thought that if you drank Pepsi it could bring back the dead. Despite that fiasco, Diet Coke took a risk that paid off in 1991 when Elton John co-starred with Humphrey Bogart, Louis Armstrong, and James Cagney in a Diet Coke spot. This was the first instance of deceased celebrities being completely recreated digitally, rather than simply splicing existing footage into a film. The commercial was so successful that a second one was made featuring Paula Abdul (during her initial, pre-American Idol round of stardom) alongside Cary Grant, Groucho Marx, and Gene Kelly.
Deceased Celebrity Estates And Tax Considerations
After Michael Jackson died in 2009, the fiduciaries of Michael Jackson’s Estate filed an estate tax return showing a value of $7 million. The IRS issued a notice of deficiency claiming a value of $1.32 billion, and demanded additional estate taxes of $505.1 million and $196.9 million in penalties and interest.
A large issue in the case, and one that is relevant to other celebrities, is the value at death of Jackson’s name and likeness. The estate reported the value at $2,105.00, claiming his reputation was tainted by child-abuse allegations and strange behavior; the IRS saw that value at $434 million. At the time of his death, he was rehearsing for a comeback tour, and there were new deals on the Jackson table.
A valuation at death is not supposed to look at what happened after a celebrity dies, but it is hard for certain events not to influence issues that will inform a court’s judgment. The question for any asset is what a willing buyer would pay for the asset from a willing seller on the date of death (or on a date that is 6 months later if alternate valuation is elected). That Jackson’s estate did a phenomenal job of exploiting his name and likeness after his death is not a favorable circumstance for it in this dispute; to date it is estimated his estate has earned of $2 billion since Jackson died in 2009.
Nonetheless, allowing a substantial value for name and likeness can create significant difficulties for an estate since this is an intangible asset, and can result in a tax bill far in excess of available assets for payment if these assets cannot be sold. In large celebrity estates, the existence of this issue may prompt a quick sale of these assets to help establish value for estate tax purposes.
In the Michael Jackson case, U.S. Tax Court Judge Mark Holmes referenced USPAP standards and the question came up – asking if there were any USPAP standards as it pertained to valuing intangible assets individually or as a bundle with name and likeness.
The Uniform Standards of Professional Appraisal Practice (USPAP) are the generally recognized ethical and performance standards for the appraisal profession in the United States and is managed by The Appraisal Foundation. USPAP was adopted by Congress in 1989, and contains standards for all types of appraisal services, including real estate, personal property, business and mass appraisal. The Appraisal Foundation (Foundation) is the nation’s foremost authority on the valuation profession. The organization sets the Congressionally authorized standards and qualifications for real estate appraisers as well as qualifications for personal property appraisers and provides voluntary guidance on recognized valuation methods and techniques for all valuation professionals. This work advances the profession by ensuring that appraisals are independent, consistent, and objective.
According to Lisa Desmarais Vice President, Appraisal Issues, The Appraisal Foundation with real estate, the process and methodologies are regulated. However with Personal Property, there are no regulations and valuation professionals of personal and intellectual property will typically adopt the USPAP preamble etc., and after that one is relying on the valuation expertise of the appraiser. When two opposing parties don’t agree on a valuation, the matter may end up in court as is the current pending case between the IRS and the Jackson Estate.
What Does And Does Not Work
Dell Furano is CEO at Epic Rights. Among many other things, he is best known as the pioneer and current leader in the worldwide music artist merchandising and licensing industry. We discussed how after a celebrity dies, you may see certain product in the marketplace for about a year, and after that demand, well, dies. There are also the circumstances of one’s death that will make it hard for a consumer to see said celebrity in their homes and lives (save for music). Epic had been offered the opportunity to license the name and likeness of Whitney Houston, for example, and declined however they have signed on to do the tour merchandise for the Whitney Houston Hologram Tour.
I asked Dell if he felt there was opportunity for icons such as Ray Charles, the first African-American man to own his own masters, or Little Richard who provided the genre of Rock & Roll with several of its first-ever bona-fide standards. “They are very niche and there is no social media engine,” said Dell. Unless the estate is proactive in promoting the celebrity or icon keeping them top of mind with the consumer, old fan’s as well as new potential ones will miss opportunities to make meaningful connections.
The one other piece of advice Dell had for artists today, “Buy up your counterfeit goods!” It is important to protect your brand, and demonstrate that you are or have been policing the use of your intellectual property, especially if you plan to leave it to your estate for future monetization. In addition, there are simple things brand owners – celebrities with trademarks and copyright images – can do such as owners of federal trademark or copyright registrations can record their products and associated trademarks and copyrights with CBP (US Customs Boarder Protection) for a fee of $190 per copyright or trademark registration class, and use the Amazon Brand Registry to remove counterfeit trademarked goods.
The Albert Einstein Example
Einstein said, “Imagination is more important than knowledge. Knowledge is limited. Imagination encircles the world.” Creativity allows one to see possibilities and not just limitations; one can acquire knowledge but imagination takes passion, bravery and persistence. The names “ALBERT EINSTEIN” and “EINSTEIN” and the official Albert Einstein logos are either trademarks or registered trademarks belonging to the Hebrew University of Jerusalem, of which Einstein was one of the founders. Remember what Dell Furano said about a social media engine? While it may not be the first one thinks of when it comes to social media, the university does a lot both actively and passively to keep the legacy of Albert Einstein alive, according to Ryan Kernan, Vice President, Rights Representation & Merchandise Licensing at Greenlight, a part of Branded Entertainment Network and the authorized representative for Einstein. “There are a lot of great actors, musicians, athletes, but there is only one Einstein. He is a true evergreen icon,” said Ryan.
One of my personal favorite examples of best-in-class licensing activation is the partnership between Salesforce and Einstein. Salesforce, a worldwide market leader in cloud-based technology and the #1 customer relationship management (CRM) platform, was looking for a unique name to brand and market its new product — an Artificial Intelligence (AI) platform. Tapping into the unparalleled equity and awareness of Einstein, Salesforce and Greenlight entered into a multi-year licensing partnership to create “Salesforce Einstein.” The partnership combined the brains of Salesforce’s Artificial Intelligence (AI) platform with Einstein’s name and likeness. This not only provided Salesforce with clear differentiation to other AI business-to-business software solutions, but by creating a proprietary, animated customer-friendly Einstein character, Salesforce added to the product’s accessibility for its customers, despite its technological sophistication.
Put simply, Einstein Analytics is an app used to visualize the activity occurring in your Salesforce environment. Whether you use Salesforce for Sales, Marketing, or Service, this visibility tool offers insights into the data (like contacts, campaigns, or accounts) your users add to the CRM every day.
I asked Ryan what the hot trending categories are, to which he replied “digital and alcohol.” Safe to say, with the right property and activation partner, you can still raise your spirits and sales with the right celebrity or icon from beyond the grave.
The Fine Line Between Honor And Dishonor
In 1999 I joined the NBA Global Merchandising Group to help rebuild the league’s consumer products business after a lockout and Michael Jordan’s first retirement; I had been recruited because I did not come from a sports background, however had a strong command of intellectual property, licensing and retail; before my tenure there I did not follow basketball at all.
The first NBA player I met was Kobe Bryant. He was such a gentleman, stopped to meet the people who worked behind the scenes and he had an appreciation of all of the moving parts that afforded him the ability to be an NBA player. I can’t quite explain this, however when you’ve worked for the NBA this bond forms, this tradition of doing the right thing becomes organically embedded into your decision-making process, and the role of socially responsible monetization is taken very seriously.
People grieve in different ways and I feel when decisions are made and carried out with respect it is important to support those choices, especially of those closest to the departed. I am not privy to the nature of the relationships of all involved, however I was taken by surprise to learn of Sport’s Academy’s CEO Chad Faulkner’s decision to drop the name “Mamba” from its name – I’m not judging it – rather thinking out loud. “Black Mamba” was the alter ego Kobe created for himself, and Bryant described the Mamba Mentality as a way of life; the simplest form of just trying to get better at whatever you’re doing.”
There is a word in Portuguese without a simple English translation, saudade. Saudade is a deep emotional state of nostalgic or profound melancholic longing for an absent something or someone that one cares for and/or loves. Moreover, it often carries a repressed knowledge that the object of longing might never be had again.
‘Mamba’ strikes me as a word that holds the same potential as saudade, one word that can carry a sentiment and meaning – and one I feel desperately is needed in our world today, with the legacy of Kobe Bryant – the man- as the word’s iconic shepherd. How that word is or is not used for commercial purposes is up to the IP owners, the estate et all to decide as to what would be of honor and dishonor, but I would not be too quick to edit it from existence, it holds a deep meaning that helps power the memory of Kobe Bryant.
When it comes to sports icons, one would expect the “captain obvious” commemorative collectibles, basketball shoes etc. Fans will hopefully be pleased to learn that Granity Studios, Bryant’s multi-media content company, will release a novel “Geese are Never Swans” created by the late Los Angeles Lakers legend in July 2020. In May, 2020, Vanessa Bryant, Kobe’s widow, shared on Instagram a sneak peak of her late husband’s posthumous novel and called it one of the favorite novels created by Bryant.
As you can see, there is much to consider in managing the afterlife of celebrity brands, I leave you with a Chuck Palahniuk quote that will resonate with those managing this meaningful IP: “We all die. The goal isn’t to live forever, the goal is to create something that will.”
Email us, to learn how The Blake Project can help you manage your celebrity IP and or discover the right celebrity endorsement for your brand. Further, we serve as expert witnesses in celebrity licensing and endorsement disputes.
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