Dead-Hand Guidance: A Preferable Testamentary Approach for Artists

Abstract

Postmortem copyrights in the United States allow for the control of art long after the artist has died. Successors to these interests, and even the public generally, may have bona fide reasons to encourage visual artists to be specific and comprehensive about the ways in which artwork is to be reproduced and used after the artists’ deaths. Nevertheless, this chapter cautions that efforts to encourage visual artists to provide guidance should simultaneously discourage any attempts to make these instructions binding. First, it is not clear that purportedly binding testamentary instructions about these matters will be effective. Second, the proliferation of such instructions may run counter to the goals of copyright law, raising the question of whether they should be effective. In short, in these matters, dead-hand guidance is preferable to dead-hand control.

Full Chapter can be found as follows:

Dead-Hand Guidance: A Preferable Testamentary Approach for Artists, in Posthumous Art, Law and the Art Market: The Afterlife of Art (Sharon Hecker & Peter J. Karol eds., Routledge, 2022).

Keywords: Copyright, visual art, photography, sculpture, successor, dead-hand control, testamentary instruction, fiduciary duty, aesthetic philosophy, Van Gogh, Barbara Hepworth, Olivia Parker

JEL Classification: K3, K11, K12, K36