IP, R.I.P.

• Author: Gilden, Andrew
• Position: Deceased celebrities' intellectual property rights

Abstract

Death is an inevitably disruptive event. When a famous artist or public figure dies, the fallout can be particularly complex and contentious. An artist's surviving family and close friends frequently seek privacy and solitude as they process a deeply personal loss, while millions of fans, by contrast, seek to widely share, rework, and celebrate the decedent's archive of work. When these very different mourning processes intersect, intellectual property laws play a pivotal role in deciding how an artist is mourned, commemorated, and remembered.

This Article reexamines the interests of an artist's families, friends, and other heirs (IP estates) within the IP system. Previous scholarship has been nearly uniformly critical of IP estates: IP estates "jealously guard" their ancestor's legacy, "sit back and collect rent," and put a "stranglehold" on the public domain. This Article, by contrast, reveals a more diverse and sympathetic set of motivations. Although IP estates do often try to restrict fair use and free speech, they also seek to vindicate interests otherwise celebrated in our legal culture: remedying exploitation, protecting family privacy, and maintaining the dignity of the deceased. For the families and friends of individuals in creative fields, IP can serve as a valuable tool in managing the messy tasks of mourning and moving forward.

This Article excavates the role of IP in mediating the diverse interests of families and fans as they process the death of an artist. Even if the conduct of IP estates can be highly questionable from a social welfare perspective, recognizing the interests that animate their disputes nonetheless can lead to (1) greater common ground among the various stakeholders negotiating an artist's cultural legacy and (2) improved use of estate planning to reduce the likelihood of conflict.

Table of Contents Introduction I. Scholarly Criticism of IP Estates A. Postmortem Rights and IP Theory B. Scholarly Narratives II. Estate Narratives A. Ensuring Proper Credit B. Remedying Exploitation C. Family Privacy D. Moral or Reputational Integrity E. Legacies III. Estates in Broader Context IV. The Theory and Practice of Parallel Mourning A. Theory B. Doctrine Conclusion Introduction

The year 2016 witnessed the deaths of an astonishing number of cultural icons: David Bowie, Prince, Leonard Cohen, George Michael, Carrie Fisher, Debbie Reynolds, Gene Wilder, Florence Henderson, Harper Lee, Elie Wiesel, Muhammad Ali, and many, many others. In the wake of this year of great loss--this "year of the reaper" (1)--how should our culture grieve, remember, and commemorate each of their legacies? Are there any limits to how to process the loss of someone with widespread cultural influence? And who decides the proper way to mourn?

When artists and other public figures die, two parallel processes begin. For most people, the passing of a celebrity sets off a very public commemoration, as millions of fans rapidly buy, share, and rework the decedent's archive of work. Mortality has claimed the individual, but the music, books, films, and speeches can live on forever. It is easy to forget, however, that the decedents' friends and families need to process the deaths of actual human beings they loved apart from the oeuvre that constitutes their public legacy. In the midst of the near-constant circulation of a deceased artist's words, voice, and image, the artist's family and friends must negotiate a new day-to-day reality where they can no longer interact with their mother, sister, daughter, or best friend. They often want what any mourner wants--solitude, privacy, and respect for the difficult task of moving forward with their lives.

Intellectual property laws frequently ensure a clash between these two mourning processes. Under copyright and right-of-publicity laws, family members of a deceased individual are often tasked with deciding what public uses of a decedent's work or image are lawful at the same time they are most acutely grieving their personal losses. Under U.S. copyright law, copyright protections subsist for seventy years after the author dies, (2) and under many states' right-of-publicity laws, a property right subsists for many decades after the death of a celebrity. (3) As a result, family members who typically inherit these rights (IP estates) have the exclusive right to authorize dissemination of their ancestor's creative works and to control commercial uses of their ancestor's image or likeness. The families and friends of Prince, (4) David Bowie, (5) and George Michael (6) will accordingly play a pivotal role in shaping how they and their 2016 cohort are remembered in the years to come.

Postmortem intellectual property accordingly highlights the dual meanings of an artist's legacy. "Legacy" means both "a gift by will especially of money or other personal property" (e.g., a bequest) and "something transmitted by or received from an ancestor or predecessor or from the past" (e.g., the legacy of ancient philosophers). (7) IP estates inherit a "legacy" from an artist in the first sense that allows them to control the broader cultural impact and memory of the artist--a legacy in the second sense. In transmitting rights from artists to heirs, IP estates are forced to decide when the personal relationships underlying their testamentary legacies are paramount and when those relationships must cede to the public demands of the decedent's cultural legacy.

Although IP estates play a complex and incredibly important role in today's intellectual property regimes, IP scholars have devoted surprisingly little attention to them. (8) To the extent they have appeared in IP scholarship more than fleetingly, they have appeared almost entirely as the objects of pointed criticism. (9) They are "capricious" aristocrats; (10) "misbehaving children"; (11) "trust fund" babies; (12) and "privileged and sometimes arbitrary custodians of culture." (13) They "jealously guard" their ancestor's legacy, (14) "sit back and collect rent," (15) and put a "stranglehold" (16) on what would otherwise be a thriving public domain. Despite being a central component of IP regimes and frequently successful litigants and lobbyists, IP estates often emerge in scholarship as its black sheep: families in chaos, out-of-touch scrooges, and the idle rich.

This Article takes a different approach and seeks to understand what motivates the sometimes restrictive instincts of IP estates. It documents and examines the expressed motivations of deceased artists' families when they assert infringement claims against fans, scholars, or other individuals with an interest in the deceased artist. Drawing from a broad range of litigation-related documents (e.g., briefs, pleadings, depositions, and trial transcripts) and related public statements by heirs, this Article reveals a far more complex taxonomy of interests than suggested by most portrayals of IP estates. Yes, the individuals in these disputes do often inherit great sums of money, and yes, they do often try to quell activities that are likely fair use, but they also often seek to vindicate interests otherwise often celebrated in our legal culture: remedying exploitation, protecting family privacy, and maintaining the dignity of the deceased.

What emerges from this Article's examination of IP estates is that the families of a deceased artist act in many ways like any other family working through the death of a relative: they are at times staunchly protective of their family member's memory; they fiercely guard space for their own private reflection; they cling to inherited property as a way to continue their bonds with a deceased loved one; and they expect others to respect and facilitate their processes of mourning. (17) These mourning practices are often unpredictable, irrational, inefficient, and can very much frustrate the continued dissemination and transformation of the deceased artist's life work. The private mourning of artists' families thus can be sharply at odds with the interests of the millions of fans who have deep attachments to the artists' public personae.

Nevertheless, it is far from a simple task to decide in what circumstances private or public mourning comes first. Scholars, judges, and lawmakers may ultimately and rightfully decide that in many cases the private interests of families may need to give way to the expressive interests of the broader public, but they should do so based on a conscious weighing of the actual interests at stake. (18) When confronted with similar emotional attachments, scholars in other fields (e.g., trusts and estates, property law, and family law) have often responded with a sympathetic ear. IP scholarship is notable in its contrasting, widespread skepticism.

It is becoming increasingly untenable for scholars and advocates to overlook the perspectives of IP estates. First, technological advances have enabled deceased celebrities to virtually live on in the public spotlight. For example, Star Wars: Rogue One features an incredibly lifelike CGI version of deceased actor Peter Cushing, the 2012 Coachella Festival featured a "live" performance by deceased rapper Tupac Shakur, and Michael Jackson's hologram performs nightly in Las Vegas. These controversial, but highly lucrative, resurrections are almost entirely in the hands of IP estates. Second, there recently have been numerous highprofile lawsuits involving IP estates, most notably the Blurred Lines (19) and Stairway to Heaven (20) litigations, as well as infringement lawsuits against artists Ed Sheeran, Justin Timberlake, and Jay-Z. (21) Third, IP estates have latched onto the Supreme Court's 2014 opinion in Petrella v. MGM, Inc., (22) which effectively allowed lawsuits against uses of copyrighted works that had been ongoing for decades prior to the copyright owner's death. (23) Fourth, since 2013, copyright heirs have the ability to terminate their relative's...