Earlier this month, Professor Eva Subotnik presented her paper, Artistic Control After Death, at the Sixth Annual Tri-State Region IP Workshop at NYU School of Law. Professor Brett Frischmann, of Cardozo School of Law, served as the paper's commentator. An abstract 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 a number of succession law trends, the evidence might suggest that strong control is warranted. The weakening of the Rule Against Perpetuities, the rise of the honorary trust, and the availability of incentive trusts and 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 literature, art, and music seems fundamentally troubling. This article situates the instructions given with respect to authorial works within the constellation of instructions given with respect to—and the policies that govern—other types of bequests. In particular, it considers the enforceability of attempted artistic control through the use of a fiduciary duty. In balancing the competing interests, this article considers the demands of both federal copyright policy and state trust and right of publicity laws. In the end, the article argues that authorial instructions must yield to the needs of the living. In particular, such a view requires that some living person(s) be in a position to make decisions about uses of a work of authorship.