The Need to Establish Right of Publicity Values

• Author: Weston Anson
• Pages: 131-148

131

The Need to Establish Right

of Publicity Values

The question “how much is your client really worth,” is simply answered: it depends.

In this short chapter, we will begin to deal with the practicalities of valuation of

rights of publicity. We start with the reasons why one is valuing the right of publicity for

an individual. There simply isn’t just one reason why a right of publicity is being valued;

there are multiple reasons, as laid out below.

In addition, this chapter helps to lay down some of the bases for several of the

chapters in Part III of the book. For example, in chapters 11 and 12, we devote substan-

tial space to how you actually value rights of publicity and other intellectual property

assets. In chapters 13 and 14, we lay out how one begins to price a deal using statistics

and statistical analysis and deals from our own data base. Again our discussions here

in this chapter about transactional analysis and negotiating analysis brings forward an

additional discussion on what is covered in much greater detail in Part III. And in chap-

ter 15 we deal with specific challenges in valuing rights of publicity in litigation as well

as in transactions.

The analyses in those chapters all spring from the core principle in this chapter. The

central question is “why are you valuing the right of publicity,” in a particular situation

in which you find yourself. And thus, the need to establish rights of publicity value

forms that central question.

No less than patents, copyrights, or trademarks—or the price of a piece of real

estate for that matter—the value of rights of publicity needs to be known in many

situations and for different reasons. The need to understand that right of publicity

value can be, and is, compelling for many of the same reasons as for other intellectual

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132 Right of Publicity: Analysis, Valuation, and Current Legal Status

property. We have seen in previous chapters how value can change precipitously

(there can be no more stunning an example of fallen value from multimillions to

almost zero overnight than Marilyn Monroe). Whether for comparative, business, or

competitive reasons, value has to be established. And whether for postmortem or

other legal reasons, value has to be established.

However, the value and valuation of rights of publicity is more complex than any

other type of intellectual property. This is true primarily for two reasons:

• First, each use of a person’s right of publicity is different. For example,

a celebrity may engage in a simple 30-day product promotion; a personal

appearance tour; a licensed line of products bearing the celebrity’s name; or

even a four-year endorsement campaign such as Catherine Zeta-Jones for

T-Mobile. With this in mind, obviously each of those uses is going to have a

vastly different impact on the person’s rights of publicity value.

• Second, the multiplicity of laws and protections available to the celebrity for

their right of publicity is complex. In chapter 5 we provided a summary dis-

cussion on a state-by-state basis of that complexity.

Having already stated that the reasons to value are multiple, we’ll try to group them

into logical areas so that we can treat them as simply and compactly as possible.

The drivers of valuation fall into six broad areas:

1. Comparative analysis

2. Transactional analysis

3. Litigation analysis

4. Other legal reasons

5. Trusts, estates, and postmortem

6. Negotiations

I. Comparative Analysis

The comparative analysis that we refer to is a comparative market value analysis to

other celebrities and other properties. It is an analysis that compares a celebrity’s or

personality’s right of publicity value on a competitive basis to others in the same or sim-

ilar arena. The purpose of the comparative market analysis is of course to help bracket

value. After all, the value of rights of publicity is always comparative in nature. So this

comparative value in fact helps form the basis of a competitive market value. And it

should be noted that this comparative market value is often intertwined with the analy-

sis that goes into the transactional value analysis.

The comparative market value analysis calls for the analysts to research and review

value against three main groups of competitive properties:

1. Other celebrities who are in the same business (e.g., entertainment

celebrities). Subgroups of these include those competitive personalities at

the same level as the personality whose value is being judged (e.g., other

B-list celebrities). Those who are above the personality in fame and notoriety

would be considered A-list celebrities; those who would be listed below the

personality or celebrity would be on the C-list.

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