“Albert Einstein, Income Hectomillionaire!*

Einstein has earned $75 million over the last five years. Not bad for a gent who died in 1955.

More specifically, Einstein's right of publicity has earned that fortune for his estate and heirs. In her op-ed for The New York Times, The New Grave Robbers, Ray Madoff writes that the tendency to treat the identity of people long dead as private property has gotten out of hand.

In some states, such as New York, a person's right of publicity ends with the person's death. In others, heirs may possess and profit from that posthumous right for a limited time. In a few, "control over the identities of the dead has been secured for terms ranging from 100 years to, potentially, eternity."

A celebrity who who does not wish heirs to profit from his right of publicity has little say in the matter: "It is a basic tenet of wills law that a person cannot order the destruction of a valuable property interest." That's good news for the Internal Revenue Service:

[R]ights of publicity, like all other property interests, are subject to estate taxes at their highest market value. This means that even if heirs choose not to market a person’s identity (perhaps to protect their loved one’s dignity), they nonetheless must pay taxes on the right. In some cases, that could compel heirs to market their loved ones’ identity in order to pay the taxes associated with it. Paradoxically, the values would likely be highest for those individuals who most coveted their privacy while alive (think J. D. Salinger).

Madoff wishes Congress would deal with the right-of-publicity mess:

In doing so, it should establish clear First Amendment protections and set forth a relatively short term for the right of publicity to survive death (perhaps 10 years). Most important, the law should provide a mechanism that allows people to opt out of marketing their identities after death.

Update: Add Elizabeth Taylor to the list of dead people who will keep on getting richer. That could be a problem. "Much like Elvis and Michael Jackson," the Wills, Trusts and Estates Prof observes, "Taylor failed to understand and plan for money made after death."

*My bad. Forgot hectomillion meant 100 million, not 10. Still, Einstein is racking up a genuine hectomillion every decade or so, and that's impressive moneymaking.

Related post: Return of the Dead Hand