Any estate lawyers around to opine on whether the provision is valid? (Studying for the bar exam did not prepare me for this, although it sure feels like it will be an essay question on the 2014 bar.)
I love and respect Yauch and much of the music he has written. And I recognize that people grow and change, and what they do when they are young is not necessarily what they would do later in their lives, with a little seasoning and reflection.
But I just wanted to point out that the control over his music that Yauch asserts in his will is something that Yauch himself denied other artists when he and his colleagues ripped them off, sample after sample and without compensation, on those early Beasties albums.
Maybe it would have been nice if he had said "use my music for ads as long as is necessary to give fair compensation to the people we sampled without paying, and then after that, no more selling out"?
I am assuming his wife and immediate heirs will honor the wish, but I don't know that it's enforceable long-term if just for lack of standing. If whoever owns the rights down the road wants to exploit them, I'm not quite sure who would have standing to enforce the will. I don't know the copyright status of the Beasties' songs (and Isaac correctly points out that given the prominence of sampling in their early work, it's particularly complex), but I'm assuming Yauch has at least some interest in them, and certainly has the right to control his own image.
I never really thought about it, but I imagine that it would be commercially tough to license anything from Licensed to Ill or Paul's Boutique for use in commercials or soundtracks. The buyers would want indemnity, and the sellers probably wouldn't be willing to give it to them. But I realized as I was writing that that there are probably concert films or documentaries that include some of those samples, so what do I know?
Some states recognize publicity rights (name/image) after death, but I'm not sure about New York, as I don't practice there.
My understanding is that the provision prohibiting use of music/art in advertising was handwritten on the will, so it's very possible the provision won't be valid. It's going to depend on New York's treatment of holographic wills/codicils, witness/notarization requirements, etc. Some states recognize holographic wills (e.g. entirely in the decedent's handwriting), whereas others require only material provision be in the decedent's handwriting or require that even if handwritten, it meet the same formalities as other wills in terms of number of witnesses, must be notarized or contain a self-proving affidavit.
Of course, if the provision is recognized as a valid codicil in New York, you still have the question of how and whether the restriction will operate as Yauch envisioned, and I don't know about that. I'm assuming that's decided by copyright law as between the band members and Yauch's estate, if there's a difference of opinion. If the copyright is sold, I don't believe you can place such a restriction on the exercise of the copyright by the purchaser, though I'm assuming you can do so if you're just licensing it, but again - that's not my area. I'm sure there's someone here who can better address that aspect.
New York recognizes post-mortem right of publicity. As a general rule, however, it's not the law of the state you're suing in that matters as much as the jurisdiction that was domicile at time of death. As an example, while California (unsurprisingly) recognizes a post-mortem right of publicity, efforts by the Princess Diana estate to sue over unauthorized memorial imagery were shot down by courts because Diana's domicile was the UK, which does not recognize such a right.
I should clarify, since I wrote my earlier comment entirely too fast and before the coffee hit this morning, that some states will recognize holographic wills ONLY if entirely in the decedent's handwriting, whereas others, for example, will ONLY recognize the material provisions and still others will recognize a typewritten, fill-in-the-blank form will, with the blanks handwritten in by the decedent.
<span>"Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes," reads a copy of the will obtained by </span>Rolling Stone<span>. The phrase "or any music or any artistic property created by me" was added in handwriting.</span>
Good for him for knowing what he wants and doing something about it.
ReplyDeleteI think this is awesome.
ReplyDeleteAny estate lawyers around to opine on whether the provision is valid? (Studying for the bar exam did not prepare me for this, although it sure feels like it will be an essay question on the 2014 bar.)
ReplyDeleteI was wondering whether it was valid and/or if it could be overriden by the other Beastie Boy's intentions. The article mentioned it too.
ReplyDeleteHow long 'til we see decals of MCA peeing on a Ram Trucks logo?
ReplyDeleteI love and respect Yauch and much of the music he has written. And I recognize that people grow and change, and what they do when they are young is not necessarily what they would do later in their lives, with a little seasoning and reflection.
ReplyDeleteBut I just wanted to point out that the control over his music that Yauch asserts in his will is something that Yauch himself denied other artists when he and his colleagues ripped them off, sample after sample and without compensation, on those early Beasties albums.
Maybe it would have been nice if he had said "use my music for ads as long as is necessary to give fair compensation to the people we sampled without paying, and then after that, no more selling out"?
I am assuming his wife and immediate heirs will honor the wish, but I don't know that it's enforceable long-term if just for lack of standing. If whoever owns the rights down the road wants to exploit them, I'm not quite sure who would have standing to enforce the will. I don't know the copyright status of the Beasties' songs (and Isaac correctly points out that given the prominence of sampling in their early work, it's particularly complex), but I'm assuming Yauch has at least some interest in them, and certainly has the right to control his own image.
ReplyDeleteI never really thought about it, but I imagine that it would be commercially tough to license anything from Licensed to Ill or Paul's Boutique for use in commercials or soundtracks. The buyers would want indemnity, and the sellers probably wouldn't be willing to give it to them. But I realized as I was writing that that there are probably concert films or documentaries that include some of those samples, so what do I know?
ReplyDeleteSome states recognize publicity rights (name/image) after death, but I'm not sure about New York, as I don't practice there.
ReplyDeleteMy understanding is that the provision prohibiting use of music/art in advertising was handwritten on the will, so it's very possible the provision won't be valid. It's going to depend on New York's treatment of holographic wills/codicils, witness/notarization requirements, etc. Some states recognize holographic wills (e.g. entirely in the decedent's handwriting), whereas others require only material provision be in the decedent's handwriting or require that even if handwritten, it meet the same formalities as other wills in terms of number of witnesses, must be notarized or contain a self-proving affidavit.
Of course, if the provision is recognized as a valid codicil in New York, you still have the question of how and whether the restriction will operate as Yauch envisioned, and I don't know about that. I'm assuming that's decided by copyright law as between the band members and Yauch's estate, if there's a difference of opinion. If the copyright is sold, I don't believe you can place such a restriction on the exercise of the copyright by the purchaser, though I'm assuming you can do so if you're just licensing it, but again - that's not my area. I'm sure there's someone here who can better address that aspect.
ReplyDeleteNew York recognizes post-mortem right of publicity. As a general rule, however, it's not the law of the state you're suing in that matters as much as the jurisdiction that was domicile at time of death. As an example, while California (unsurprisingly) recognizes a post-mortem right of publicity, efforts by the Princess Diana estate to sue over unauthorized memorial imagery were shot down by courts because Diana's domicile was the UK, which does not recognize such a right.
ReplyDeleteI should clarify, since I wrote my earlier comment entirely too fast and before the coffee hit this morning, that some states will recognize holographic wills ONLY if entirely in the decedent's handwriting, whereas others, for example, will ONLY recognize the material provisions and still others will recognize a typewritten, fill-in-the-blank form will, with the blanks handwritten in by the decedent.
ReplyDeleteAccording to Rolling Stone:
ReplyDelete<span>"Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes," reads a copy of the will obtained by </span>Rolling Stone<span>. The phrase "or any music or any artistic property created by me" was added in handwriting.</span>