Robin Williams Restricted Exploitation of His Image for 25 Years After Death

Robin Williams Restricted Exploitation of His Image for 25 Years After Death

On Monday, the family of Robin Williams gathers in a San Francisco courtroom in a quarrel over how to divide personal property such as jewelry and memorabilia. Unfortunately, the dispute overshadows one of the more innovative aspects of Robin Williams’ estate planning, which just might become a model for other celebrities preparing for their demise. After all, one thing his wife Susan and children Zachary,Zelda and Cody won’t be discussing in court is intangible property like the late actor’s right of publicity.

According to a review of the Robin Williams Trust — filed as an exhibit last Wednesday — Williams bequeathed rights to his name, signature, photograph and likeness to the Windfall Foundation, a charitable organization set up by Williams’ legal reps at the law firm of Manatt, Phelps.

There are two important facets of this provision.

First, the Trust restricts exploitation of Robin Williams’ right of publicity for 25 years after his death. That means, there won’t be any authorized advertisements featuring Williams until at least August 11, 2039. The provision also interferes with someone immediately doing, say, a hologram of a Robin Williams standup routine or digitally inserting him into a new film.

“It’s interesting that Williams restricted use for 25 years,” says Laura Zwicker, an attorney at Greenberg Glusker who counsels high net worth individuals on estate and tax planning. “I haven’t seen that before. I’ve seen restrictions on the types of uses — no Coke commercials for example — but not like this. It could be a privacy issue.”

Or maybe, Williams’ reps were aware of novel technologies that have the power of essentially resurrecting dead celebrities — and hoped to avoid anything that could tarnish his legacy.

The Trust’s publicity rights provision is cutting edge in another way.

If the Windfall Foundation is deemed ineligible for a charitable deduction by the Internal Revenue Code, the Trust mandates that Robin Williams’ publicity rights be distributed to one or more charitable organizations with a similar purpose (Doctors Without Borders, AIDS, Make-a-Wish, etc.) which qualify for such charitable deductions.

According to insiders, this appears to be a direct reaction to a dispute happening at the moment between the estate of Michael Jackson and the IRS over how to value the late singer’s publicity rights for estate tax purposes. 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. The dispute is currently being adjudicated in U.S. Tax Court.

Assigning publicity rights to a tax-advantaged charitable organization could limit his family’s tax liability. By doing what he did, Williams not only asserted a measure of control over posthumous exploitation, but he recognized that the value of a celebrity’s afterlife has gone up in recent years and made a step to mitigate the IRS’ interest in this.

Digital Estate Planning

Digital Estate Planning

Mostly everyone has an estate. An estate is nothing more than the personal property you have left over after you pass away. Estate planning is nothing more than planning for what you would like to have happen to your property after you pass away.
If you think about it, most people have some kind of an “estate” that they need to plan for. In fact, with the amount of digital assets that most of us have on our computers or online, our “estate” can become quite significant.
For example, how much have you spent on iTunes since you began your account? Are all of those songs and movies worth something? Absolutely.
What about all of the pictures that you have taken and posted on Facebook or Pinterest? At the very least, there is significant sentimental value in all of those photos and thoughts recorded.
Websites like Facebook and Pinterest are the most common version of journalism that exist. Wouldn’t you like to pass all of those memories on to your loved ones?
If you think about it that way, you have much more of an “estate” than you might have thought. However, until recently, there has been little in the way of legislation that could help you preserve all of your online assets.
Current Nevada Laws
In Nevada, we have a law signed into effect on June 1, 2013 that gives the personal representative of a deceased person’s estate the power to direct the termination of any online account or similar electronic or digital asset of the decedent. This law allows individuals to cancel accounts that may be incurring charges; however, this law does not
address powers to access these accounts or copy the contents, and it only applies to personal representatives.
There are currently no laws in Nevada designed to protect an individual’s assets from being lost in cyberspace. When someone passes away, unless the correct login information has been saved somewhere accessible or passed on to those they want to have access to their accounts, the digital assets in those accounts are lost forever.
Contrast with Delaware’s Laws Delaware has traditionally been on the forefront of establishing new estate planning laws. In order to keep up with the precedent, Delaware has just passed a new set of laws that has pushed them ahead in the world of digital estate planning. This new law allows loved ones to access online accounts after that person’s passing.
The act called “The Fiduciary Access to Digital Assets and Digital Accounts Act” (HB 345) was signed into effect on August 12, 2014. This new law broadens digital access for legal heirs and closes one digital estate planning gap. The Delaware House Democrats have called this new bill the “first comprehensive state statute dealing with the disposition of a decedent’s digital assets in the nation.”
The major impact of the act is to carve out a procedure by which executors of a dead person’s estate can request access to any of the deceased’s digital accounts or assets. After sending a request that complies with the law’s requirements, a custodian for a digital service or account has 60 days to comply with that request.
So far, Delaware’s Fiduciary Access to Digital Assets Act is the most comprehensive law of its type that has been enacted. Some states have attempted to protect the deceased’s loved ones with “Facebook after death” laws; however, none have come close to being as comprehensive as Delaware’s laws.
Nevada is traditionally not far behind Delaware in enacting estate planning statues. So, it would behoove us to consider the terms in this new Delaware law and how it might also impact Nevadans as we contemplate the adoption of a similar law.
Delaware’s Digital Estate Planning Limitations
When Delaware’s digital estate planning law goes into effect on January 1, 2015 it will not be a perfect solution that will solve all digital estate planning issues.
Some skeptics feel that this new law may expose private third-party communications to heirs. The Delaware law in its current form does not take into account highly confidential communications to decedents from third parties who are still alive. For example, doctor records, psychiatrist communications and clergy confessions might all be exposed under this new law.
How You Can Plan Today Technology is ever evolving and the state laws must keep up with the changes in order to provide the proper amount of protection.
Technology is changing the way that we interact with people and conduct business. In the course of our daily lives valuable digital records are being kept in our smartphones, computers and website accounts. We will need to be proactive so that our loved ones and fiduciaries can access this data after our passing.
Given the state of today’s Nevada laws it is advisable that you make a list of all of your valuable or significant data, online accounts and digital property. This list should be kept with your Living Trust or Will. Make sure you indicate how your executors or trustees can find each item listed, how to access it and why it is something that would be valuable to them. You can also regularly back up all of your digital assets to a hard drive, flash drive or disc. These storage mediums can also be kept with your estate planning documents in a secure location.
Next, you should contact your estate planning attorney to include plans for your digital property in your estate plan. Be sure to include instructions on how you would like your digital property divided. This process may include preparing a Living Trust, a Will or a durable power of attorney (depending on your particular situation).
Planning for your digital property is one more aspect of estate planning that must be considered. In order to keep estate administration costs down, provide for a smooth transition and ensure that all of your valuable digital property is not overlooked, the proper steps must be taken.

What Happens to Your Digital Estate After You Die?

What Happens to Your Digital Estate After You Die?

Ever wonder what happens to your social media accounts, email, online texts and other digital content when you die? Do they simply expire, leaving nothing behind but digital dust? Or can you authorize someone to take them over after you pass on? And if so, what powers would such a person possess?

In response to such quandaries, tech giants Facebook and Google have created systems to deal with death—such as suspending inactive accounts, and creating online memorials. But these steps only address part of the problem.

This novel issue was recently confronted by the Delaware Legislature, which became the first state to pass a uniform statutory scheme granting fiduciary trustees full access to a decedent’s online accounts and digital content, just as they would with more tangible assets. If this trend continues, more people may be able to confidently plan for the disbursement of their digital estate.

Avoiding Digital Death

Left unchecked, social media and online accounts may expire with the decedent. This phenomenon is commonly referred to as “digital death.”

Digital death can be emotionally devastating: The permanent loss of a loved one’s intimate thoughts and feelings can exacerbate the grieving process. Social media sites like Facebook and MySpace also routinely restrict account sharing in their terms of use.

But digital death can also have financial repercussions, as digital assets can have real value. A 2011 survey by McAfee found American consumers valued their digital assets at an average of $55,000. Such assets include digital photos, digital music, client lists, domain names, social media accounts, online manuscripts, blogs, email accounts, computer code, online gaming avatars and more.

Delaware Grants Fiduciaries Full Access to Digital Assets

In an effort to provide a workable framework by which to administer one’s digital estate, Delaware recently passed the Fiduciary Access to Digital Assets and Digital Accounts Act, 12 Del. C. Section 5001, et seq., in August.

What makes the act so unique is that it is the first adoption of the Uniform Fiduciary Access to Digital Assets Act (UFADAA), drafted by the Uniform Law Commission (ULC), a nonprofit group that lobbies to enact model legislation.

According to the ULC, the UFADAA solves the digital estate problem by using the concept of “media neutrality.” This means if a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset. The UFADAA also defers to an account holder’s privacy choices as expressed in a document (like a will or trust), or online by an affirmative act separate from a general terms-of-service agreement. Thus, an account holder’s desire to keep certain assets private will be honored by the UFADAA.

One reason the UFADAA is so important is because current federal legislation regarding access to digital assets is hidden in the Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA)—both passed in 1986, with only minor revisions since then. Notably, the SCA broadly prohibits an “electronic communications service” (like an email service or social network) from disclosing the “contents of a communication” to parties other than the sender or recipient. The CFAA imposes criminal penalties (or civil liability) for “unauthorized access” to computer hardware, devices, and stored data.

To address this concern, the act states a “fiduciary with authority over digital assets or digital accounts of an account holder … shall have the same access as the account holder, and is deemed to (1) have the lawful consent of the account holder and (2) be an authorized user under all applicable state and federal law and regulations and any end user license agreement.”

Despite its well-intentioned goals, detractors like Jim Halpert, an attorney with DLA Piper and director of the State Privacy and Security Coalition, still oppose the act. “This law takes no account of minimizing intrusions into the privacy of third parties who communicated with the deceased,” Halpert told Ars Technica. This includes highly confidential communications to decedents from third parties—like doctors, psychiatrists and clergy—who would not expect an executor to review the communications. Halpert also claims it will cause confusion with federal law.

The act is set to take effect Jan. 1, 2015.

Other States’ Approaches to Divesting Digital Assets

Delaware was not the first state to address digital assets. In 2005, Connecticut passed a narrow law giving access to email accounts for deceased residents. Since then, Rhode Island, Idaho, Indiana, Oklahoma, Nevada and Virginia have all passed legislation providing varying degrees of access to digital accounts.

Bills are also pending in a dozen other states, yet all but one has failed to pass. In Pennsylvania, HB 2580—a fourth-generation bill to allow access unless it was restricted by will or court order—has been pending since August 2012.

Implications: Planning for Your Digital Estate

Digital assets have largely replaced tangible ones in our modern world. Yet the laws governing access to these assets remain outdated and inconsistent.

Although a form of personal property and part of a decedent’s estate, commentators have observed that rights regarding digital assets are intertwined in a complex web of federal, privacy, copyright, intellectual property and state law. The result is fiduciaries are often left with little authority or guidance in collecting, distributing and settling a digital estate. And the problem may be more widespread than previously understood. According to a March 2012 article in Technorati, 30 million Facebook accounts belong to dead people.

Current federal law and the law of most states fail even to recognize a fiduciary as possessing authority over digital assets. And until more jurisdictions adopt the UFADAA, this lack of uniformity will only continue.

When a person dies (or is incapacitated) his or her fiduciaries and family members face particular challenges when administering his or her digital estate. After first identifying which digital property is significant, or has value, other obstacles include having to deal with: (1) passwords; (2) encryption; (3) criminal laws penalizing “unauthorized access” to computers; and (4) data privacy laws. Overcoming such obstacles can be tricky—but helpful guidance does exist.

Commentators suggest account holders take four steps to plan for death/incapacity. First, they should inventory their digital footprint by identifying accounts and determining if they have financial or sentimental value. This process should include listing usernames, account numbers and passwords (the average person has 25 passwords). This sensitive list should also be kept separate from their will; a probated will becomes a public record.

Second, account holders should routinely back up electronically stored information—especially if the data is stored remotely—so as to save fiduciaries from having to obtain access from remote service providers that are subject to various federal and state criminal and data privacy laws, like the SCA or CFAA. Fiduciaries would thus only have to deal with the aforementioned service providers in order to close or memorialize accounts.

Third, the account holder should make a plan for managing/distributing the inventoried digital property. This includes designating a fiduciary with power and authority over digital property, providing instructions for distribution, and securely deleting digital assets the decedent does not want passed on to his or her heirs. Understanding a site’s default terms with respect to whether certain accounts will be automatically frozen or deleted is also critical.

And fourth, the account holder should expressly authorize service providers to disclose private information to their fiduciaries so as to evidence their “lawful consent” thereto, and “authorized access” to the data. This can be accomplished by including a clause in a will identifying the above federal laws.

Given the explosion of online content and a comprehensive statutory scheme on the books, digital estate planning may soon become the new normal. Until then, a little knowledge may help stave off the looming specter of digital death.