Ealier this week the Boston Globe ran this story about a bill passed by the Massachusetts Senate and currently before its House Committee on Ways and Means.
If the bill becomes law, people in Massachusetts—most notably those who, like Bill Cosby, have built up bankable personas over the course of their lives—will be able to treat their identities as pieces of property that continue to exist in the world long after they do. For 70 years after your death, according to the proposed bill, your identity will legally live on, and your heirs will be able to own it, or sell it, or sue anyone who uses it without asking.
A law that protects you from posthumous exploitation might seem like an intuitive move; after all, nobody wants to imagine their face, or their mother’s face, being used in a way they disapprove of. But the idea is also a relatively new one, and if the bill passes it would place Massachusetts on one side of a little-known shift in how the law treats personal identity in America. At the heart of the matter is the existential-sounding question of whether our public personas—the versions of “us” we construct during our lives—are an ownable thing that can be bought and sold, or whether, after we’ve left the stage, they vanish into the air and essentially belong to history.
Professor Ray Madoff (Boston College) says in the Globe article that, “We are giving something up when we say identity is a privatized interest.... We’re giving up access to our cultural heritage.”
From a tax lawyer's perspective, I'd add that laws like the one proposed in Massachusetts also create a massive tax problem, too. If a celebrity's right of publicity is freely descendible, it likely will be subject to estate tax, too. See, e.g., here, here and here. I doubt that Massachusetts has taken the tax consequences into account.