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Artistic Control After Death

62 Pages Posted: 6 Apr 2016 Last revised: 13 May 2017

Eva E. Subotnik

St. John's University School of Law

Date Written: April 1, 2016

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.

Keywords: Copyright, Dead Hand Control, Succession Law, Trust Law, Fiduciary Duty, Author, Artist

Suggested Citation

Subotnik, Eva E., Artistic Control After Death (April 1, 2016). 92 Washington Law Review 253 (2017); St. John's Legal Studies Research Paper No. 16-0005. Available at SSRN: https://ssrn.com/abstract=2758791

Eva E. Subotnik (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States
718-990-3296 (Phone)

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