Last week, Professor Eva Subotnik presented her forthcoming book chapter, Dead-Hand Guidance: A Preferable Testamentary Approach for Artists, at the annual IP Scholars Conference, hosted virtually this year by Cardozo School of Law. Her panel was on “Copyright Authorship & Ownership.” The book chapter is a contribution to a forthcoming volume entitled Posthumous Art, Law and the Art Market, co-edited by Professor Peter J. Karol and Sharon Hecker, Ph.D., Art Historian and Curator (Routledge, forthcoming 2022).

Subotnik also presented an earlier version of the chapter in May at the Second Annual Art Law Works-in-Progress Colloquium, hosted virtually by New England Law and OSU Moritz College of Law. At that workshop, the commentator on her paper was Professor Jeannie Suk Gersen of Harvard Law School.

Here is the abstract of the chapter:

Postmortem copyrights in the United States allow for the control of art long after the artist has died. Successors to these interests, and even the public generally, may have bona fide reasons to encourage visual artists to be specific and comprehensive about the ways in which the artwork is to be reproduced and used after the artists’ deaths. Nevertheless, this chapter cautions that efforts to encourage visual artists to provide guidance should simultaneously discourage any attempts to make these instructions binding. First, it is not clear that purportedly binding testamentary instructions about these matters will be effective. Second, the proliferation of such instructions may run counter to the goals of copyright law, raising the question of whether they should be effective. In short, in these matters, dead-hand guidance is preferable to dead-hand control.