Frequently Asked Questions for Registration of a Property Right in a Deceased Individual's Marketable Traits
Registration in Texas of a property rights in a deceased individual’s marketable traits is governed by Chapter 26 of the Property Code and the secretary of state’s administrative rules found in 1 Texas Administrative Code Chapter 76, as well as any other applicable state or federal law.
What is a property right in a deceased individual’s marketable traits?
An individual has a freely transferrable property right in the use of the individual’s name, voice, signature, photograph, or likeness (“marketable traits”) after the death of the individual if:
- the individual is alive on or after September 1, 1987, or died before September 1, 1987, but on or after January 1, 1937; and
- the individual’s name, voice signature, photograph, or likeness has a commercial value at the time of his or her death or comes to have a commercial value after that time.
Tex. Prop. Code §§ 26.002-26.004.
- Who may register a property right claim?
- Is registration required?
- Is there a deadline for registering a property right claim?
- Why register a property right claim?
- How do I register a property right claim?
- If someone else may exercise a property right, may I use the deceased individual’s marketable traits?
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Who may register a property right claim?
A person who claims to own a property right may register that claim with the secretary of state. Tex. Prop. Code § 26.006(a). If the ownership of the property right has not been transferred at or before the death of the individual whose material traits are the subject of the claim, § 26.005 provides the manner in which the property right vests.
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Is registration required?
No. Section 26.006(a), Texas Property Code, provides for optional registration of a property right claim. However, unless the owner registers a valid claim with the secretary of state, an owner of a property right may not exercise that right during the first year after the death of the individual whose material traits are the subject of the claim. Tex. Prop. Code § 26.008.
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Is there a deadline for registering a property right claim?
No. A property right claim may be registered with the secretary of state at any time after the death of the individual whose material traits are the subject of the claim. However, unless the owner registers a valid claim with the secretary of state, an owner of a property right may not exercise that right during the first year after the death of the individual. Tex. Prop. Code § 26.008.
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Why register a property right claim?
Registration of a claim is prima facie evidence of a valid claim to a property right. A registered claim is superior to a conflicting, unregistered claim unless a court invalidates the registered claim. Tex. Prop. Code § 26.007. Also, for the first year following the death of the individual whose marketable traits are the subject of the claim, an owner of a property right may exercise that right only if the owner registers a valid claim with the secretary of state. Tex. Prop. Code § 26.008.
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What is the procedure for registering a property right claim?
To register a property right claim, Form 3701 must be submitted to the Statutory Documents Section of the Office of the Secretary of State, along with the $25 filing fee.
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If someone else owns or is otherwise entitled to exercise a property right, may I use the deceased individual’s marketable traits?
Except for the permissible uses outlined in § 26.012, Texas Property Code, a person may not use a deceased individual’s marketable traits in any manner without the written consent of a person who may exercise the property right. Tex. Prop. Code § 26.011. The unauthorized use of a deceased individual’s marketable traits may result in liability to the person who owns the property right for actual and exemplary damages, lost profits, and attorneys’ fees. Tex. Prop. Code § 26.013.
