A Will for Willa Cather.

Author:Simmons, Thomas E.

Abstract 642 I. Introduction 642 II. Discussion 647 A. Artistic Sensibilities and the Desire to Preserve and Obscure 648 B. Origins and a Brief Introduction to Trust Architecture 665 C. Types of Trusts: A Proposed Taxonomy 671 1. Charitable Purpose Trusts 674 2. Noncharitable Purpose Trusts 679 a. Trusts for Masses, Gravesites, etc 680 b. Trusts for Pets 683 c. Trusts for Other Noncharitable Purposes 687 d. The Purpose Enforcer as Proxy for an Ascertainable Beneficiary 691 e. The Res Purpose Trust 693 f. The Hybrid Purpose Trust 694 g. Artistic Limitations, Virtue, and Vision: Drafting Hints 697 3. A Tricky Income Tax Matter 701 D. Stumbling Blocks 704 1. Contemporary Stumbling Blocks for Purpose Trusts 705 a. The Rule Against Perpetuities (RAP) 705 b. The Rule Against Accumulations (RAA) 711 c. Unreasonable Restraints on Alienation 714 d. Rules Against Capriciousness 716 2. The Noncharitable Equivalent to Cy Pres 719 E. Noncharitable Purpose Trusts: Recognition Achieved 731 1. The Evolution: Honorary Non-Trusts 731 2. The Revolution: Enforceable Noncharitable Purpose Trusts 733 3. Statutory Approaches: A Selective Survey 735 F. A Will (and a Testamentary Trust) for Willa Cather 741 III. Conclusion 749 I. INTRODUCTION

Consider a songwriter who wants to ban the use of her music in advertisements or an author intent on eliminating the possibility that her novel will be optioned to a filmmaker. The law frowns upon these sorts of alienability limitations and use constraints. (1) Property - including intellectual property - comes with an assorted bundle of use and alienability rights. (2) The law detests unreasonable restraints on alienability. (3) Courts have deterred owners from placing use limitations on property that bind future owners. (4) Restraints on alienation are said to be repugnant, as are future interests that vest too remotely. (5) The dead hand is feared and the living hand is protected. (6) Exceptions can be noted, such as short-term use limitations between contracting parties, equitable servitudes, and the nearly extinct determinable estates. (7) These exceptions, however, are generally present either in commercial or charitable contexts. (8) In the private noncharitable donative context, which we will be concerned in the pages that follow, use and alienability limitations are more closely scrutinized. (9)

This Article is concerned specifically with use restrictions in the private non-charitable donative context.

In the commercial context, use limitations often reorder rather than indefinitely, suspend, or destroy rights in property. (10) Thus, for example, a landlord might withhold from her tenant the right to use the premises for particular purposes, but the right is reordered, not destroyed. With commercial transactions, use or alienability limitations might be exchanged or sold. (11) That is, the limitations are bargained for. In the charitable context, use restrictions might also be considered through a contract lens, despite the lack of consideration. (12) A restricted charitable gift might be also viewed in a "but for" context: The donor might not make a gift unless the donor is able to dictate the future use of it by a charitable organization. (13) If we want to encourage charitable giving, a greater array of enforceable use limitations serves this end. (14)

In the private noncharitable donative context, lengthy or even permanent suspensions of use rights are harder to justify and--predictably--more difficult to achieve. (15) Conveying property to a private donee while withholding a particular use right can be seen as an attempt to destroy the property, in part. (16) Withholding a particular use right in effect destroys a particular thread of the property. Consider the owner of a 1963 Ford Thunderbird who has meticulously restored the car to its original condition and wants to ban future owners from adding garish chrome wheels, aftermarket tricks, or modern conveniences like antilock brakes. Withholding a donee's right to modify the 1963 Thunder-bird would, if enforceable, destroy a noteworthy stick within the bundle of property rights accompanying its ownership: automobile modification rights. A car forever lacking any modification rights would also complicate the future owners' ability to sell the car. (17) Marketability would be impacted. For these reasons, an attempt to withhold modification rights is likely unenforceable. Although one might extract this concession with a contractual promise from the donee (a promise not to modify the car), a contractual use limitation will degrade and dissipate as ownership of the car changes hands because future owners will not be in privity of contract with the earlier owner. (18) Alternatively, vesting one person with ownership of the car and another with the modification rights to that car would likely fail from the outset. (19) Controlling the "fate of things" once they have left an owner's hands is not easy. (20)

With an inter vivos or testamentary transfer of property, (21) the donor who wishes to dictate the future uses of the property will typically be frustrated by rules that value the free alienability of wealth, property, and ideas more than the whims of a former owner, especially a deceased one. (22) The ability of authors to shape property rights in their creative works from the grave is--unhappily --slight. (23) Thus, a testamentary gift of one's diary to a legatee with instructions to share it only with close family members might be disregarded. (24)

An inter vivos gift of a painting to a friend with the admonition never to loan it to a gallery might be unenforceable. (25) This Article aims to identify a mechanism by which these kinds of targets can be met. It is particularly sensitive to honoring the creator's use limitations in question--an artist and her painting, the lyricist and her song, or the author and her novel. (26) It will attempt to unearth enforceable private donative use restriction rights through the use of a trustee charged with overseeing the use and enjoyment of creative works and imbued with the values and objectives of their author. As detailed in the next Part, artist-imposed use limitations over creative works are not uncommon. These impulses might even be seen as a natural outgrowth of the creative process.


    Several examples of artist-imposed use limitations that might be considered as natural expressions of the creative process--from Tennessee Williams to James Joyce--follow. (27) From these examples, this Part constructs a hypothetical problem: the aims of author Willa Cather with regards to her unpublished and private letters. (28) This is a hypothetical problem but also a genuine one insofar as Willa Cather did in fact desire certain use limitations over her letters. (29) Those limitations, however, were disregarded by her successors. (30) In articulating and navigating how her aims might have been achieved, an explication of trust law is required. (31) A framing of a particular sort of trust--a noncharitable purpose trust--comes next. (32) The numerous legal barriers and challenges to achieving Willa Cather's objectives must also be identified. (33) Finally, a resolution to these barriers and a particular testamentary trust for these objectives will be outlined. (34)

    1. Artistic Sensibilities and the Desire to Preserve and Obscure

      When Tennessee Williams, the author of A Streetcar Named Desire, died in 1983, he left a will that provided,

      It is my wish that no play which I shall have written shall, for the purpose of presenting it as a first-class attraction on the English-speaking stage, be changed in any manner, whether such change shall be by way of completing it, or adding to it, or deleting from it, or in any other way revising it, except for the customary type of stage directions.... To the extent that I can legally do so, no party who shall acquire any rights in any play, poem, or literary work of mine shall have the right to make or authorize the making of any changes in any play... . (35) Tennessee Williams wished to impose no-modification restrictions on his plays. Because the restrictions were framed as a "wish," the drafter of his will likely recognized that the restrictions could not be legally enforced. (36) However, merely precatory instructions may accomplish an author's aims. A testamentary "hope," "wish," or "desire" about a testator's aims conveyed to his devisees could work, though not in a legal sense. (37) It could represent a de facto --though not a de jure--solution. As a legal matter, precatory instructions are unenforceable. (38) Still, so long as the devisee continues to honor the deceased author's instructions, the author's objectives are met. A testator's request to avoid optioning a novel's film rights may work, at least as long as the legatee remains under the testator's influence. This kind of chiding should not be ignored solely on account of its legal flimsiness. Choosing the right person--a "literary executor"--and delivering clear instructions may achieve the author's objectives. (39) A literary executor who shares the testator's values and abides by the decedent's wishes can be considered as an alternative to an unenforceable admonishment. Indeed, a resolute executor oftentimes abides by the testator's advice and wishes. (40) A nonbinding "ethical will" imposed upon a trustworthy survivor might preserve and articulate a testator's unenforceable recommendations. (41)

      Other testators besides Tennessee Williams have attempted to legally bind future owners' uses and alienation of their intellectual property creations. When the founder of the Beastie Boys died in 2012, his will emphatically directed that his music never be used for advertising purposes. (42) The Beastie Boys' composer expressed these use limitations vigorously--in a handwritten addition. (43) Similarly, J.D. Salinger emphatically restrained his heirs from ever licensing film rights...

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