Artistic Control After Death

The WIll

Professor Eva N. Sobotnik of Saint John’s University Law School has released an article soon to be published in the Washington University Law Review, 92 Wash.L.Rev. 2017 (upcoming) in which she analyzes the law surrounding the legal ability  of writers, artists, and musicians to control the use of their works after death. This implies that there is a sort of “life after death”  through the use of legal devices with regard to the control of use of the works. This article was just released in the WILLS, TRUSTS, & ESTATES e JOURNAL which is sponsored by the American College of Trust and Estate Counsel (ACTEC) Foundation and edited by Robert H. Sitkoff, John L. Gray Professor of Law, Harvard Law School.

I am printing the ABSTRACT of the article with a link to the full text:

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Looked at 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 portray a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of works of literature, art, and music is a fundamentally troubling notion. This article evaluates instructions given with respect to 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, the 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.

The the text of the full article see : Sobotnik “Artistic Control After Death”


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