Andrew Gilden, assistant professor of law, Willamette University College of Law in Salem, Ore.
Trusts and estates law has a rich archive of legal history and scholarly analyses with regard to property rights that’s largely evolved with the concerns and priorities of today’s heirs. When wills and trusts fall short of meeting the emotional and practical needs of beneficiaries, there are often remedies in law that can embrace the intent of the decedent yet adjust for the compelling situations of heirs. When the decedent’s property is a body of artistic work, however, intellectual property (IP) law applies. Unlike trusts and estates law, the author argues, IP law to date shows less flexibility and lacks the scholarly body of work to thoughtfully address the range of emotional and economic issues of today’s inheritors of IP estates.
Professsor Gilden posits that when an artist dies, there’s often an inherent conflict between the desires of the heirs and the desires of the public. Even as the artist’s family is mourning, they’re often immediately thrust into situations that require legal responses to protect their personal privacy and the artist’s body of work. Guardians and inheritors of an artist’s art, music and writing may have many reasons to want to limit access to the body of work, while public fans and scholars may wish to see the work freely available for enjoyment and future development in the public domain. When conflicts arise, IP law has been the governing doctrine. In this article, Prof. Gilden reviews the limitations of IP law’s scholarly body of work in balancing non-economic concerns of heirs, and he suggests future remedies that might allow IP law to better acknowledge and bridge the legitimate competing priorities of heirs and artistic fans.
The article launches with the concept that when an artist dies, there are two parallel processes of mourning; one for the heirs and family who may be engulfed in grief, while a second begins for fans who immediately wish to celebrate and amplify the artist’s music, books, artwork and speeches. Even as these dual mourning periods begin, family members who inherit IP rights have the sole power to start controlling the commercial use of the artist’s work and limiting public access. Prof. Gilden reports that to date, heirs who have actively limited public access to an artist’s work have often been viewed as greedy or vindictive. On the contrary, he continues, IP heirs have a range of legitimate emotional reasons to wish to limit access including “remedying exploitation, protecting family privacy and maintaining the dignity of the deceased.”
Prof. Gilden next reviews a number of cases in which families have successfully argued in court to restrict the use of an artist’s likeness or body of work. He reports that in most of these cases, the heirs’ primary argument wasn’t economic. He further highlights that when an economic interest was argued, it was often from a position that the artist was economically exploited during her lifetime, and the estate should have the opportunity to remedy the financial shortcomings from life. Many times, heirs have prevailed in court to expand the application of copyright and right of publicity laws for the non-economic benefit of living family. Despite this success, Prof. Gilden points out, scholarly work on IP law continues to primarily assume heirs only care about financial gain. He strongly argues that while the courts have begun to adjust, scholarly work hasn’t.
In contrast, notes Prof. Gilden, other areas of law regularly adjudicate between private personal interests and public interest and have a rich body of scholarly law reflecting this. Estate law in particular regularly addresses issues of business succession and unique property transfer. These conflicts aren’t always just about the economic value but also the emotional attachment the inheritance creates between the deceased and the heirs, creating or maintaining an enduring legacy. Estate planning, therefore, often includes a compassionate understanding of the emotional issues of heirs to help reduce conflict at a time when all involved parties are most likely to be distraught with grief and heightened emotional reactions. Likewise, in areas of organ donation, medical research and even disposition of bodies, Prof. Gilden offers examples that highlight the scholarly work that’s considered how the law can successfully balance private concerns and public interest.
To better address the common competing struggles between IP estates and the public, Prof. Gilden suggests first embracing the concept of “parallel mourning,” in which the family and the public are both processing a death simultaneously with similar emotional goals. The author encourages IP law to acknowledge that both sets of mourners (public and private) are working to construct an enduring legacy of the artist even as their concepts of fair use may be at odds. This approach might particularly influence questions of “transformative use” in law, in which the author suggests parallel mourning concepts can help assure that emotional, cultural and ethical issues are given equal weight when assessing the future or immediate use of artistic work in the public domain. Next, there’s a profound need to better integrate estate planning into the IP system, as too many artists die without explicitly naming a steward for their body of work. Prof. Gilden suggests a more explicit registration process for IP might even include requiring a registrant to proactively name who’ll be the legal guardian of her work after death. Finally, Prof. Gilden supports growing efforts to amend the Copyright Act’s termination of transfers provisions to more clearly designate and enforce successors over the 70 years of copyright protection post-mortem. These remedies are all meant to move IP law and practice toward a more nuanced approach that doesn’t simply adjudicate economic interests, but thoughtfully acknowledges both the IP heirs’ and the public’s parallel desires for a celebrated, lasting legacy.