In light of Alfred Brophy's recent post on issues arising in relation to Edward Albee's estate, I thought I'd mention two recent articles addressing the relationship between intellectual property and trusts & estates law, both of which I found quite interesting.
The first is Eva Subotnik's Artistic Control After Death 92 Washington Law Review 253 (2017). Subotnik was quoted in the New York Times article that Brophy cited in his post, and her article expands on many of the same themes. Here is the abstract:
To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Viewed through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts reflect a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of literature, art, and music is a fundamentally troubling notion. This Article evaluates the instructions authors give with respect to their authorial works against the backdrop of the laws and policies that govern bequests more generally. In particular, it considers the enforceability of attempted artistic control through the imposition of a fiduciary duty. In balancing the competing interests, this Article considers the demands of both state trust laws and federal copyright policy. In the end, this Article argues that authorial instructions must yield to the needs of the living. Such a view requires that, to the greatest extent possible, some living person(s) be authorized to decide how works of authorship are used—even if that means overriding artistic control by the dead.
I had the privilege of reading and commenting on this article while it was in draft form, and was very impressed by its measured take on the merits and demerits of testamentary control over artistic estates. It's a great read, especially because of the colorful anecdotes Subotnik uses to illustrate the various issues. No one does crazy like artists!
The second is Andrew Gilden's IP, R.I.P., Washington University Law Review (Forthcoming). Here is the abstract:
Death is an inevitably disruptive event. When a famous artist or public figure dies, the fallout can be particularly complex and contentious. An artist’s surviving family and close friends frequently seek privacy and solitude as they process a deeply personal loss, while millions of fans, by contrast, seek to widely share, rework, and celebrate the decedent’s archive of work. When these very different mourning processes intersect, intellectual property laws play a pivotal role in deciding how an artist is mourned, commemorated, and remembered.
This Article reexamines the interests of an artist’s families, friends, and other heirs (“IP estates”) within the IP system. Previous scholarship has been nearly uniformly critical of IP estates: IP estates “jealously guard” their ancestor’s legacy, “sit back and collect rent,” and put a “stranglehold” on the public domain. This Article, by contrast, reveals a more diverse and sympathetic set of motivations. Although IP estates do often try to restrict fair use and free speech, they also seek to vindicate interests otherwise celebrated in our legal culture: remedying exploitation, protecting family privacy, and maintaining the dignity of the deceased. For the families and friends of individuals in creative fields, IP can serve as a valuable tool in managing the messy tasks of mourning and moving forward.
This Article excavates the role of IP in mediating the diverse interests of families and fans as they process the death of an artist. Even if the conduct of IP estates can be highly questionable from a social welfare perspective, recognizing the interests that animate their disputes nonetheless can lead to (1) greater common ground among the various stakeholders negotiating an artist’s cultural legacy and (2) improved use of estate planning to reduce the likelihood of conflict.
While I am strongly inclined to be skeptical of the efficiency of both IP estates and "dignitary" claims to IP control, Gilden offers plausible policy reasons to at least take them into account. I do wonder whether there is a chicken and egg problem: Do families need IP control in order to manage mourning, or do families use IP to manage mourning because they have it? Also, while I love the rhyming title, I can't help but channel philosopher of trademarks Ed Timberlake, and note that not only is "IP" not a helpful term, but also the issues addressed in this article really only implicate copyright (and maybe the right of publicity?). Nevertheless, I highly recommend this iconoclastic and beautifully written article.
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