Chase Duncan recently published The Right of Publicity Predicament: Valuing a Postmortem Asset in the Context of Future Technological Development, 2026. Provided below is the Introduction:
Taylor Swift has recently taken the world by storm, generating an immense amount of celebrity value that will likely continue long after her death. But Swift’s right of publicity—i.e., her right to control the commercial use of her identity1—has already been invaded by third parties using artificial intelligence (“AI”) and deepfake technology (“deepfake”). Other individuals’ rights of publicity may not be subject to these invasions until after their death, or never at all. While individuals may have tools to enforce their right of publicity during life and after death, in some cases, damage to the right’s value may be irreparable. With constant improvements to AI and deepfake, creations violating the right of publicity may be imperceptible and cause permanent reputational damage after an individual is no longer alive; on the other hand, estates licensing an individual’s right of publicity after their death may experience a positive financial impact from using these technologies. How should the Internal Revenue Service (“IRS”), as the agency charged with assessing estate taxes after an individual’s death based on the total value of assets held within that individual’s estate, compute the value of an asset as intangible and speculative as the postmortem right of publicity (“PROP”)?
The IRS has not adopted any particular methodology for the valuation of an individual’s PROP for estate tax purposes. Additionally, Estate of Andrews v. United States constrains the facts and data that can be used in the valuation process to only information that was known or reasonably should have been known or foreseen at the decedent’s date of death. While the IRS confronts the already-difficult task of reducing all future value stemming from an asset into a single present-day valuation, the rapid advancement of technology and the jurisdictional variety in right of publicity protections (where and when they are applicable)9 have made valuing PROPs even more difficult.
This Comment argues that the IRS should adopt a two-tiered approach to asset valuation for estate tax purposes when an asset is subject to risk of intrusion by technology, as the PROP is, so it can account for the impact of future technological developments such as AI and deepfake. Specifically, the IRS should endorse a one-two punch of the “market approach” followed by the “income approach.” This framework is adaptable and, vitally, compliant with the Estate of Andrews constraint on informational inputs for valuation.
Part I of this Comment provides a background on the estate tax, the right of publicity, AI and deepfake, valuation methodologies, and a critical constraint on inputs to calculations discussed in Estate of Andrews. Part II then discusses a key problem in the context of asset valuation for estate tax purposes that is spotlighted by the PROP: how can we account for future technological developments using only information knowable at a decedent’s date of death, as is required under Estate of Andrews? Part III proposes a solution to address this predicament: a two-tiered approach to valuation, first harnessing the market approach when it is suitable, then employing the income approach with an explicit risk adjustment to the discount rate commensurate with the impact of these technologies as of the decedent’s date of death. Lastly, Part IV concludes.
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