Tag: intellectual property
April 21, 2017 marked one year since the death of the beloved recording artist, Prince. We have previously blogged about the legal issues surrounding Prince’s Estate that have emerged since his death. Although more than a year has now passed, the Estate continues to be engaged in litigation.
According to media reports, producer George Ian Boxill tried to release an EP containing previously unreleased songs by Prince to coincide with the first anniversary of his death. Boxill asserted that he had the right to release the music. In a lawsuit commenced by Paisley Park Enterprises, Prince’s Estate disagreed and alleged that Boxill was in breach of the recording agreement that he had signed with Prince.
The Estate was initially successful in blocking Boxill’s attempts to release the EP of new music. However, according to a new report in TMZ, Boxill has now filed additional legal documents that state that the unreleased music was not the subject of a nondisclosure agreement.
Separately, as we have previously blogged, Prince died without a Will and any known children, resulting in claims from a number of possible heirs.
According to a recent news report, the Minnesota judge presiding over the proceedings had indicated that he would not make a declaration regarding the heirs of Prince’s Estate until appeals by other potential heirs whose claims had been rejected were allowed to run their course. Lawyers for Prince’s sister and half-siblings have now argued that this delay will unnecessarily increase costs and hinder the proper administration of the Estate.
We have previously blogged about the importance of carefully addressing issues regarding intellectual property and any possible rights the estate may have after the testator’s death in a testator’s estate plan. Deceased writers, musicians and other artists may be parties to agreements that bind their estates and affect the rights and control over their intellectual property.
It is generally advisable for drafting solicitors to ensure that such legal documents are reviewed as part of a creative professional’s estate planning. It may also be prudent to obtain the advice of a lawyer who specializes in intellectual property law, to ensure that the estate plan adequately addresses any possible rights the estate may have after the testator’s death. Disputes over the beneficial ownership and control of a testator’s intellectual property can result in protracted and expensive litigation.
The legal issues surrounding Prince’s Estate reiterate the importance of careful estate planning while the testator is still alive. Lack of certainty regarding the beneficiaries of the estate, the deceased’s intentions and the property/rights of the estate can significantly increase the risk that the estate will become embroiled in protracted litigation.
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Disney’s decision to “resurrect” Peter Cushing through CGI to reprise his role from 1977’s Star Wars for the franchise’s most recent film, Rogue One, has attracted a lot of attention. Cushing died over 20 years ago. Cushing portrayed a popular character in the original 1977 movie, to which Rogue One is a direct prequel. Rather than recast the role, Disney used CGI technology to create an entirely new performance with Cushing’s likeness. This decision has raised interesting issues, both ethical and legal.
While not confirmed, it seems likely that Disney asked permission of Cushing’s estate to use his likeness in the film. There were two mentions of Cushing in the film’s credits: “With Special Acknowledgment to Peter Cushing, OBE” and “Special Thanks to The Estate of Peter Cushing, OBE.” The laws about the right to prevent others from using and profiting from an individual’s likeness without his or her consent, variously called publicity rights or personality rights, differ significantly across jurisdictions. In California, there are strong protections that last 70 years after death, whereas in England, where Cushing lived, there are no such rights at all.
In Ontario, there is no statute that protects the use of personality, name, or image of an individual, as there is in British Columbia, Manitoba, and Saskatchewan. There is, however, a common law tort of “appropriation of personality.” In Saskatchewan and British Columbia, the cause of action for appropriation of personality is extinguished on death. The exact scope of the cause of action is unclear in Ontario law. In Gould Estate v Stoddart Publishing Co, the Ontario Court of Justice declared obiter that personality rights or rights of personality are devisable under Ontario law. Therefore, the “asset” of a deceased individual’s personality rights pass to heirs as any other assets, pursuant to the Succession Law Reform Act. The decision was affirmed on appeal. The estate of a deceased celebrity in Ontario would therefore be entitled to authorise or restrict use of the likeness of the deceased. The court declined to address how long these rights endure.
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There are new developments regarding the Estate of Maurice Sendak, the famous American author and illustrator who passed away in 2012 and is best known for authoring Where the Wild Things Are. As reported by the New York Times, Mr. Sendak’s Estate was mostly successful in an ongoing legal dispute with the Rosenbach Museum and Library in Philadelphia.
First, a bit of background: prior to his death, the Rosenbach Museum housed a large archive of Mr. Sendak’s work, including many original illustrations and portions of his book collection. However, these items were not gifted to the Rosenbach Museum. Instead, under his Will, Mr. Sendak left his collection to the foundation created in his name prior to his death, and directed the creation of “a museum or similar facility” in his hometown of Ridgefield, Connecticut. However, Mr. Sendak did leave his “rare edition books” to the museum under his Will.
In 2014, the executors of Mr. Sendak’s Estate withdrew Mr. Sendak’s collection at the Rosenbach Museum. The museum subsequently commenced a legal proceeding in Connecticut probate court, arguing that the Estate had kept two books by William Blake and a selection of rare books by Beatrix Potter. According to the museum, these books fell into the category of “rare edition books” gifted to the museum under Mr. Sendak’s Will.
According to the article in the New York Times, the Connecticut court held that the William Blake books did not fit the definition of “rare edition books,” but that the Beatrix Potter books belonged to the museum. In the result, the Estate and Mr. Sendak’s foundation were awarded 252 of the 340 items that were in dispute between the parties.
I recently blogged about the famous Mexican architect Luis Barragan, and the broader public debates that often emerge about how best to preserve an artist’s legacy after his or her death. A similar debate has served as the backdrop to the legal wrangling between the museum and the Estate.
In a 2014 article, the New York Times profiled Mr. Sendak’s long-time housekeeper and caretaker Lynn Caponera, who was now acting one of his executors and the president of his foundation. The article highlighted some of the questions and criticisms that had been directed at the executors’ decision to withdraw Mr. Sendak’s collection from the museum, with some questioning the appropriateness of Mr. Sendak’s property in Ridgefield as a site for a museum and the skill and ability of Ms. Caponera to manage and administer Mr. Sendak’s foundation.
Thank you for reading and have a great weekend,
Umair Abdul Qadir
In yesterday’s blog post, I wrote about the importance of carefully considering a testator’s intellectual property when preparing a Will. For readers who are interested in this topic, I would highly recommend a recent article in the New Yorker by Alice Gregory, entitled “The Architect Who Became a Diamond.”
The article tells the story of Luis Barragán, a famous Mexican architect who passed away in 1988. In his Will, Mr. Barragán divided his archive of architectural work between two individuals. According to the article, his business partner, Raul Ferrera, was bequeathed “all author rights and documents, movies, drawings, designs, sketches, mockups, and originals of work.”
After Mr. Ferrera committed suicide in 1993, his widow became the owner of Mr. Barragán’s vast archive. The archive was eventually sold for three million dollars to an architectural historian named Federica Zanco and her spouse. As the story goes, the archive was purchased for Ms. Zanco as an engagement gift by her fiancé, in lieu of the more traditional engagement ring.
Ms. Zanco went on to found the Barragan Foundation, and the Foundation also purchased the photographs taken by Mr. Barragán’s official photographer. At first, many thought that Mr. Barragán’s archive would be well-served under the ownership of a scholar like Ms. Zanco.
However, as the article notes, “[r]esearchers have been denied access, and even the use of images of Barragán’s buildings is carefully controlled. Among those who study twentieth-century architecture, the inaccessibility of Barragán’s archive and the bizarre conditions of its custodianship have become almost as much of a preoccupation as his buildings.”
Four years ago, the story of Mr. Barragán’s archive caught the attention of a conceptual artist named Jill Magid. In 2014, Ms. Magid invited Mr. Barragán’s to a lavish dinner and sought their permission to exhume his ashes. With their permission, Mr. Barragán’s cremated ashes were compressed into a diamond, which was then set in an engagement ring.
In seeking the permission of Mr. Barragán’s family, “Magid explained that her intention was to use the engagement ring with Barragán’s compressed remains to ‘propose’ to Zanco, in the hope that she would, in exchange, agree to open the archive, perhaps even to return it to Mexico.”
Although we have written many blog posts over the disputes that often emerge over the archives of celebrated artists and other creatives, the tale of Mr. Barragán’s archive and the engagement ring made from his remains may be one of the most fascinating stories yet.
The article also taps into a broader debate about the public interest in such archives, and the competing views regarding what should be done with an archive to best preserve the artist’s legacy. The article ends with an interview with Ms. Zanco, who explains that she has carefully controlled access to Mr. Barragán’s work through the foundation in order to prevent his legacy from being cheapened.
Thank you for reading and have a great weekend.
Umair Abdul Qadir
The creative works of deceased writers, musicians and other artists can continue to generate revenue for many years after their death. We have previously blogged about the protracted fights that can emerge over the revenue generated by these works. However, the intellectual property rights of a testator can often be overlooked during the estate planning process.
It is essential for drafting solicitors to be able to knowledgably advise their clients about intellectual property issues. It may also be prudent to obtain the advice of a lawyer who specializes in intellectual property law to ensure that the Will adequately addresses any possible rights the Estate may have after the testator’s death.
For example, the Will should clearly set out how royalties earned on a testator’s copyrighted work will be administered and distributed. With respect to copyrighted work in Canada, section 6 of the Copyright Act provides that copyright subsists for the lifetime of the author, the remainder of the calendar year in which the author dies, and an additional term of fifty years following the end of that calendar year. Thus, a testator’s copyrighted works can continue to generate significant revenue for many years after the testator’s death.
However, beyond ensuring that the profits earned are distributed in accordance with the testator’s wishes, a well-drafted Will can also help ensure that the testator’s artistic legacy is preserved. Given the rights and control conferred upon a beneficiary of intellectual property assets, the heirs of such works can help the testator’s work flourish and find new audiences well beyond their lifetime.
A great recent example of this is the story of Lucia Berlin, whose recent short story collection, A Manual for Cleaning Women, has topped bestseller lists and received the honour of being named one of the top ten books 2015 by the New York Times Book Review.
But, as set out in this touching memoir by one of her former students and friends, Ms. Berlin retired in 2000 and moved to a trailer park in Boulder, Colorado. She subsequently moved into a converted garage in Los Angeles in order to be closer to her son. Ms. Berlin passed away in 2004, on her 68th birthday.
More than eleven years after her death, Ms. Berlin is being heralded as a lost genius and “the greatest American writer you’ve never heard of.” Keen-eyed readers will note that many of the photographs that accompany articles about Ms. Berlin’s work are published courtesy of the “Literary Estate of Lucia Berlin LP.”
Thank you for reading.
Umair Abdul Qadir