Last weekend, Professor Eva Subotnik presented her work-in-progress, Artistic Control After Death, at the inaugural Texas A&M IP Scholars Roundtable in Fort Worth. The roundtable brings together intellectual property and technology law scholars, providing them with an annual forum for sharing research and peer networking. In addition to the usual work-in-progress presentations, this interdisciplinary roundtable featured substantial commentary offered by veteran commentators and extended Q&A sessions. Information about the Roundtable is available here.
The abstract to Professor Subotnik's article follows:
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 general succession law trends, there is some evidence to suggest that strong control is warranted. The weakening of the Rule Against Perpetuities, the rise of the honorary trust, and the availability of conditional bequests all portray a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of works of art,music, and literature seems fundamentally troubling. This article situates the instructions given by authors with respect to literary and artistic works within the types of instructions given by decedents with respect to other bequests. In particular, it considers whether the use of a fiduciary duty to ensure artistic control is an appropriate and enforceable maneuver. Weighing in favor ofsuch enforcement, arguably, are the natural and personhood rights of author-testators as well as the possible up-front incentive effects on them. Weighing against, arguably, are the natural and personhood rights of others as well as the possible long-term effects on cultural development. In balancing these competing interests, this article considers, among other things, the demands of both federal copyright policy and state trust and right of publicity laws. In the end, it argues that authorial instructions must yield to the needs of the development of culture. Such a view requires that some living person(s) be in a position to make decisions about the uses of literary and artistic works.