From Noisey:
We continue to pry open, quite literally in Prince’s case, the private works of artists to feast on their off-cuts, but is this fair?
. . . .
No one wants to think about their own death. If they do, they’re probably artists, and they tend to do so in an abstract, poetic kind of way, rather than an “I should probably file paperwork confirming the administrator of my estate and intellectual property” way. Which is perhaps why, when Prince died suddenly at the age of 57 last year, he didn’t have even the semblance of a will.
With his death, then, came months of legal complications and hearings over who should manage his estate. And because the stakes were so unusually high, the eyes of the world looked on eagerly as the mess was slowly picked apart like a ball of tangled iPhone headphone cords. Would the silver lining of Prince’s untimely end, his fans wondered, be the unveiling of the contents of his infamous vaults? The answer, it emerged last week, is yes.After his estate was placed in the hands of bank Bremer Trust, and an extensive search for a will proved fruitless, the announcement everyone was waiting for—either hopefully or with trepidation—finally came: Prince’s vaults were to be opened, and at least some of the contents, including outtakes, demos and live recordings, were to be released to the public.
. . . .
As it turns out, the law is designed to make such a thing as easy as possible. “Celebrities’ right of privacy is extremely limited,” says James Sammataro, an entertainment lawyer and managing partner at Stroock & Stroock & Lavan. “This is the ‘price’ for being a celebrity. With the possible exception of a diary – or some comparable item in which there’s a universally recognised reasonable expectation of privacy – the rights to artists’ creations are alienable, and human nature is to attempt to monetise these creations.” The primary purpose of copyright law, Sammataro explains, is not really to protect the individual musician, but to “stimulate the progress of the arts for the intellectual enrichment of the public”.
“While it seems harsh,” Sammataro continues, “if Prince or other artists truly don’t want their works disseminated, they need to memorialise this intention in a binding document, or either not fix the work in a tangible medium or destroy the work.” In other words, if you’re a musician, and you’ve got a tape lying around of the three-chord song you wrote at 15 after getting dumped for the first time, you should probably just burn it now. It’s the only safe option.
Link to the rest at Noisey and thanks to Michael for the tip.
PG says unless you decide what you want to happen with your property, including your books, manuscripts, etc., after you die and include your decisions in something a probate court will recognize, like a will or trust, somebody else will decide what happens to your property.
While PG doesn’t do estate planning any more, there are lots and lots of lawyers who do. Call one and make an appointment.
I must slightly — but only in a matter of nuance — disagree with part of PG’s recommendation. The longwinded “why” first:
It is, indeed, absolutely essential to have an estate plan, and the starting point for that is a competent estate-planning attorney in the author’s residential jurisdiction. That is, don’t get a Nashville-based attorney “because he knows songwriters’ interests” if you live in Nevada (hint: that Nashville-based attorney probably doesn’t know community property law and how that influences estate plans, or at least doesn’t think about it early in the process).
Unfortunately, the trusts-and-estates bar is too often dismissive of intellectual property (not to mention contractual obligations in publishing-related agreements), and treats intellectual property as just more “personal property” that is easily and cleanly distributed under the relevant state’s probate law. Indeed, there’s generally substantial hostility in the organized trusts-and-estates bar to bringing in any other legal professional who doesn’t profess to “taxation” as his/her specialty.
That leads to… problems, such as failing to actually distinguish between what “royalties” are and what “copyrights” are, or define “posthumous publication” when the underlying statute (and relevant, binding case law) doesn’t. Then there’s the continuing problem of ensuring that an author’s later actions are consistent with the estate plan, and indeed with the “state of the estate” at the time that the plan was considered. If you’ve got time, you can take a look at a horrifying case study — the estate of Andre Norton; the Tennessee Court of Appeals’ opinion in Horadam v. Stewart several years ago is only the tip of the iceberg.
Now, the slight actual quibble with PG:
Authors should indeed consult appropriate counsel. When seeking counsel, though, an internet search or perusing any of the pay-to-play “lawyer guides” (in the bad old days, Martindale-Hubbell and its ilk; now, there are more ‘net-based versions than I can conveniently name) is the second-worst way to find appropriate counsel. (The worst is still the phone book.) It’s ok to take a referral from someone who is trusted, knowledgeable, and in your jurisdiction, but that’s just a starting point. More frequently, the best starting point is your county or state bar association, which operate low-cost lawyer referral services…
… but you have to make sure that you’re asking for the right kind of lawyer.
You must specify that you need help with an estate plan “including significant intellectual property.” You must ensure that “intellectual property” is in the initial query; that means that a drop-down checklist (as some bar associations offer) is inappropriate and you’ll have to use the phone and make a specific request for your specific needs. Trust me: By doing so, you’re doing both yourself and prospective counsel a favor and cutting costs for both of you. (And, of course, this is not legal advice for your particular situation; it is information intended to help you obtain that advice.)
I’ve collected some links on authors and wills, and I’ve listed them below. Of special interest is an author template will from Neil Gaiman.
ESTATE PLANNING FOR WRITERS, COPYRIGHT AND INVENTORIES:
http://kriswrites.com/2013/01/09/the-business-rusch-fearless-inventories/
AUTHOR ESTATES AND WILLS:
http://writersinthestorm.wordpress.com/2013/05/10/who-will-you-trust-wills-in-author-estate-planning/
ON AUTHOR WILLS AND PRINCE:
http://kriswrites.com/2016/04/27/business-musings-prince-estates-and-the-future-contractsdealbreakersestates/
NEIL GAIMAN ON WILLS WITH AN AUTHOR WILL TEMPLATE :
http://journal.neilgaiman.com/2006/10/important-and-pass-it-on.html
PREPARING FOR A MAJOR AUTHOR EMERGENCY, LEGAL ELEMENTS:
http://bloodredpencil.blogspot.com/2016/05/in-case-of-emergency.html
And my article on the subject:
http://mbyerly.blogspot.com/2015/08/author-wills.html
The other side of the coin is that the administrator of an estate has a duty (at least under probate law in OH and TX) to make assets as profitable as possible for creditors and heirs. As a Prince fan, I want to hear ALL his music.
On the other hand, I’ve already told my husband and son, I’ll haunt them if they do anything with the unfinished projects other than delete them off my hard drives.
That a man at his level of accomplishment would be so poorly advised as to lack a will — boggling here.
This kind of surprises me, in the sense that Prince was EXTREMELY protective of his music appearing anywhere on YouTube. As in, twenty seconds of garbled audio led to a decade long court fight, which Prince ultimately lost. See here. I would have thought that kind of protective attitude would have extended other aspects of his life.
The lack of a will probably isn’t linked to not being protective but to not thinking about death.