The Artist’s Contract and the Artist’s Posthumous License
Artists are all too familiar with contracts, because they’re usually on the wrong side of them. So in 1971, conceptual artist and impresario Seth Siegelaub teamed up with lawyer Robert Projansky to develop a form contract called the Artist’s Reserved Rights Transfer and Sale Agreement, better known as the Artist’s Contract. The contract not only gives artists a basket of rights to control the use of their work but also gives them a right to a percentage of future sales. However, the contract has been rarely used and even more rarely enforced—probably because it’s intellectually interesting but legally unenforceable for lack of privity of contract.
The main reason the Artist’s Contract is interesting isn’t the contract itself but rather the justifications provided for the contract, which explain why artists want to maintain a connection to their work, and why collectors and museums should also want artists to maintain that connection. But it also encourages reflection on other ways in which artists can use contracts to express ideas, solve problems, and achieve their goals.
Consider the artist’s posthumous license. Most living authors make their works available to the public through a distributor. Niche authors often rely on charitable distributors. But charitable distributors often lack the resources. The artist’s posthumous license makes it easy for authors to give a charitable organization a perpetual, irrevocable, transferable, nonexclusive copyright license to use their works. Essentially, it’s a cheap, easy, and simple way of maintaining the status quo.
This article explains why an artist’s posthumous license is needed and how it works. It provides a model artist’s posthumous license designed for motion picture art and reflects on how that license might be adapted for authors working in other genres or media. It also encourages others to create and share alternative posthumous licenses.
Copyright Policy
Unfortunately, copyright often needlessly limits access to works of authorship. When copyright works well, it solves market failures in works of authorship. When it doesn’t, it becomes a market failure. Unfortunately, copyright currently creates far more market failures than it solves. But if commercial distributors can solve copyright market failures for popular works, maybe copyright policy doesn’t care about market failures in unpopular works.
The premise of copyright is that giving authors certain exclusive rights to use the works they create will encourage them to create and distribute more works for the public to consume. By most accounts, it has been reasonably successful.
The promise and peril of copyright is its ubiquity. Copyright automatically protects every “original” work of authorship as soon as it’s “fixed in any tangible medium.” But “original” just means “not copied,” so as a practical matter, copyright protects just about everything anyone creates, no matter how trivial. Grocery lists, text messages, you name it—copyright protects them all, and lets the market sort them out.
The default copyright term is the life of the author(s) plus 70 years. A tiny fraction of copyrights are immensely valuable and remain valuable until the copyright expires. But most copyrights are valuable only briefly, if at all. The overwhelming majority of copyrights protect “orphan works,” discarded or forgotten by their owners.
Copyright is supposed to make works more available by giving copyright owners an incentive to make their works more available. But it only succeeds when the work is valuable or is valued by the copyright owner. So, copyright tends to make popular works more available and unpopular works less available, hard to find, and impossible to use.
Copyright Practice
Copyright vests in the author of a work, and authors can use their copyrighted works essentially however they like. They can destroy them, keep them secret, share them only privately, publish them, withdraw them from publication, allow people to use them, allow some people to use them for some purposes but not for others, and generally allow anyone to do anything whatsoever with their works.
Ironically, the only thing authors can’t do with their works is put them in the public domain (or rather guarantee it will take effect). The Copyright Act doesn’t provide a way for authors to place their works in the public domain. The Copyright Office has an administrative procedure but doesn’t guarantee it will work. Likewise, the Creative Commons CC0 tool is intended to enable authors to place their works in the public domain but comes with a disclaimer. As a practical matter, courts seem inclined to take authors at their word. If they say they want their works to be public domain, courts will probably believe them. But there’s no guarantee.
Of course, authors should have at least some right to suppress their unpublished works. For example, authors can always destroy or suppress secret works, at least during their lifetime. Authors can also ask their executor or heir to destroy a work after their death, albeit with no guarantee of success. If authors want it done, the only sure way is to do it themselves. As it stands, authors can also use copyright to suppress their published works, with varying degrees of success.
In any case, while authors can be a copyright problem, their heirs may be more of a concern. Even if copyright should give authors a moral right to suppress their works, there’s no reason to give their heirs the same right, especially when the author wanted public access.
And yet, copyright enables heirs to exert considerable control over the works they own, no matter how they use those works. The heir wants to place the work in the public domain? Great, good luck! The heir wants to make the work available for free? Excellent! The heir wants to sell copies of the work? Also good. The heir wants to license the work, but only for limited uses? Okay, I guess. The heir wants to prohibit anyone from using the work for any purpose? Uh-oh.
Posthumous Copyright
Thankfully, most heirs are delighted to inherit a valuable copyright, and equally delighted to make the copyrighted work as widely available as possible, especially if they get paid.
But not always. Some heirs insist on using copyright to control the use of the works they inherited. Usually, they just want to cash in on their inheritance and don’t understand how the copyright market works. While scarcity can make a work more valuable, it usually makes a work irrelevant. Typically, access builds value, if there’s any to build. The easier it is to consume a work, the more people can consume it, and the more people who consume it, the more valuable it becomes.
Other heirs use copyright to control the use of the works they inherited because it makes them feel powerful, important, and meaningful. Inheriting the estate of a celebrity author means money and power. Unfortunately, heirs who care about power often use it to suppress the works they control, often in ways the author might disapprove. Even worse, some copyright heirs suppress or destroy the works they inherit because they disapprove of those works. Authors often create controversial works, and valuable works are often controversial. But an author’s heirs don’t necessarily share the author’s views and may even find them repulsive.
And some heirs can’t be blamed for copyright suppressing the works they inherit, because they don’t know or don’t care about owning the copyright in those works. Sadly, authors often die intestate, with no known relatives. While the law of succession still determines who inherits their copyright, it doesn’t necessarily provide a mechanism for identifying their heirs or notifying them of their inheritance. And even if an heir is identified and notified, nothing obliges them to care about the works they inherited.
Death Is Not the End
What should we do about it? The classic copyright answer is “nothing.” After all, copyright gives authors certain rights to control the use of their works, hoping it will encourage them to create more works and make the works they’ve already created available to the public. Sometimes they do, sometimes they don’t.
But what happens when the author dies? Ideally, the author has a valid will that identifies all of the copyright heirs and explains how they should use the copyrights. But that’s pretty rare. Authors leave wills that fail to clearly distribute copyright ownership of their works or explain how those works should be used. Few unsuccessful authors leave valid wills that account for copyright ownership or the use of the author’s works. Many leave no will at all. Of course, the law of succession still has answers, but they’re often unappealing. For example, an intestate author’s estate may go to a relative they never met or, even worse, a relative who disapproves of their work.
There are many unfortunate examples. Sylvia Plath’s estate went to her husband, Ted Hughes, who destroyed many of her diaries, possibly in order to protect himself from criticism. And the same is true of the T.S. Eliot, J.R.R. Tolkien, J.M. Barrie, J.D. Salinger, Samuel Beckett, and Bertolt Brecht estates, among many others. Of course, authors are notoriously unpredictable and unusually irrational. Some would probably be delighted that their heirs are making trouble. But many would probably prefer their works to be as available as possible.
Dead Hand Permission
So, how do we solve the problem of recalcitrant, indifferent, and unknown heirs? Ideally, authors would write a will, create an estate plan, or even form a charitable trust to manage their estate. However, many authors can’t afford to hire someone to help them write a valid will, let alone create an estate plan or charitable trust. Sadly, many authors die broke and alone, with an estate that consists of little more than the copyright in their works.
A key question is: What do authors want to happen to their works when they die? Obviously, it depends. But most authors just want their works to be available to the people who love them.
Popular authors aren’t the problem. The works of popular artists are typically economically valuable, so popular artists have both the incentive and the means to engage in estate planning. What’s more, the heirs of a popular artist have an incentive to make the artist’s work available to the public, in order to profit from it.
The concern lies with the unpopular works of unpopular authors, or rather, authors who created works that some people value but not enough people to make them economically valuable. Many works are culturally valuable but not economically valuable. How do we ensure those important but unprofitable works remain available?
Unfortunately, it’s hard for authors to ensure that their works will be available to their fans after they die. The problem is copyright, which assumes that authors want to control the use of their works and pass control to their heirs. But many authors don’t want to control the use of their works or want their works to be as available as possible. And many authors don’t want their heirs to control the use of their works.
So, how can artists solve the problem of ensuring postmortem access to their works? There are many different opinions, each with its own advantages and disadvantages. Four are addressed below, along with an explanation of why the artist’s posthumous license may be the best choice for some artists.
Solution 1: Estate Planning
The most obvious and conventional solution to the problem of postmortem access to an artist’s work is to create an estate plan. For many artists, especially successful artists, it’s the best option, and the one they actually choose. Like anyone else, artists can and should have a will that provides for the disposition of their assets after their death. A copyright is an asset like any other, and copyrights are commonly devised by will. Accordingly, artists can use their will to give the copyrights in their works to one or more of their heirs. The will can also explain the artist’s wishes about how the heirs should use the works. Of course, the heirs may choose to disregard those instructions.
Some especially successful artists use their will to convey the copyrights in their works to a charitable organization created to manage their legacy or use their will to create a charitable trust to the same effect. This can provide a greater degree of postmortem control over the use of the works because the articles of organization of a charitable organization can have a clause specifying its charitable purposes, and a charitable trust imposes a fiduciary duty on the trustees to observe the purpose of the trust. But neither is foolproof. Charitable organizations can amend their articles of incorporation, and charitable trusts can deviate from their charitable purpose. Just ask Albert Barnes or Henry Ford.
In any case, estate planning isn’t a realistic option for all artists, especially unsuccessful ones. Often, artists don’t have the resources to hire a lawyer to help them prepare a valid will, let alone a trust or organization. Even more often, artists simply don’t realize they need a will or an estate plan, or resist making plans for their own demise. Of course, when artists die intestate, their estate passes to their heirs, so in many cases the end result may not be so different from a simple will. But sometimes it is very different indeed. A deceased artist may not have any known heirs, and when artists are estranged from their families, their heirs in intestacy may be unaware or uninterested in their inheritance. Even worse, an intestate artist’s heirs may find their work distasteful and wish to see it suppressed or destroyed. A will enables an artist to name heirs likely to be sympathetic to their work. Heirs in intestacy are a roll of the dice at best.
Solution 2: Creative Commons Licensing
Creative Commons has created a simple solution to the problem of postmortem access, which artists can implement while they are alive. Creative Commons licenses are intended to enable authors to make their copyrighted works open-access, by unilaterally permitting many or most uses of those works. But Creative Commons licenses don’t stop working when an artist dies. Once Creative Commons, always Creative Commons.
So, artists can use a Creative Commons license to make their work open-access, and thereby ensure that it will remain open-access after their death. Of course, Creative Commons licenses only affect the copyright in the work, not the ownership or status of any physical copies. But if access is the goal, then they are a great fit.
The premise of the Creative Commons licenses is that authors retain copyright ownership of their works but unilaterally license for free all of the uses they don’t want to control. The paradigmatic and most popular Creative Commons license is the CC BY attribution license, which requires attribution of the work and nothing more. But Creative Commons also created several slightly more restrictive licenses that may appeal to some artists. In addition, Creative Commons offers the CC0 public domain tool, which authors can use to express their intention to place their work in the public domain.
The only problem with the Creative Commons licenses is that many artists don’t want to make their works open-access or public domain. Even relatively unsuccessful artists may earn modest sums licensing their works for various uses and wish to preserve that revenue stream while they are alive and leave it to their heirs after they are dead. But the explicit purpose of the Creative Commons licenses is to authorize the use of a work for free. Accordingly, the Creative Commons licenses are a great solution for artists who don’t want to collect licensing revenue but a terrible choice for artists who do want to collect licensing revenue and ensure that revenue is collected in the future.
What’s more, many artists want to retain copyright in their works so they can control how their works are used. Creative Commons licenses are open-access licenses. They mean anyone can use the artist’s work however they like, within the scope of the license. If the Creative Commons license says it’s permitted, the copyright owner can’t use copyright law to prevent it, because they already consented in advance.
Solution 3: Copyright Transfer
What many artists want is a way of maintaining the status quo after their death. Many artists, especially media artists, have an agreement with a distributor, which is often a charitable organization. Often, artists have a distribution agreement with the same charitable distributor for decades. In fact, those charitable distributors exist for the purpose of providing public access to artworks. What most artists want is for their distributor to keep distributing their works after they die.
So, artists can simply transfer the copyrights in their works to their distributor. The requirements for copyright transfer are simple and specific: It requires a signed writing. Any signed document can transfer copyright ownership. If the distributor owns the copyrights, then the distributor can use the works however it likes. Access is guaranteed.
But there are two problems. The first is similar to the problem with the Creative Commons licenses. If artists transfer copyright to their distributor, they’re no longer entitled to royalties, except by contract. What’s more, they can’t use copyright to prevent uses they dislike. So, transferring copyright is fine if the artist doesn’t care about anything but royalties, but unwise if the artist cares about how a work is used.
The second problem is more technical. The Copyright Act explicitly provides for the termination of copyright transfers after a fixed period of time. So, if an artist transfers the copyrights in their works to their distributor, they or their heirs can terminate the transfer after 35 years and reclaim the copyright. It means that distributors might lose their right to use a work, unless they negotiate a new license, and that it’s impossible to transfer copyrights in a way that will ensure open access. The heirs can always reclaim copyright ownership, even if the artist wanted to permanently transfer their copyrights to their distributor.
Solution 4: The Artist’s Posthumous License
Most artists do their best to make their works available while they are alive. And most artists would love to see their works remain available after they die. In other words, most artists want to see their works remain in distribution. Thank goodness, many artists already have a distributor, usually a charitable organization in the business of distributing artwork. For example, many media artists use charitable distributors like the Film-Makers’ Cooperative, Canyon Cinema, Video Data Bank, or Electronic Arts Intermix. Often, those artists have been using the same distributor for decades. Why not leave well enough alone?
The purpose of the Artist’s Posthumous License is to provide an easy way for artists to ensure that their distributor can continue distributing their works after their death, and nothing more. The essence of the Artist’s Posthumous License is a perpetual, irrevocable, and transferable nonexclusive copyright license to reproduce, distribute, publicly perform, and publicly display an artist’s works, granted to the distributor by the artist during the artist’s life.
The Artist’s Posthumous License avoids the problems associated with the other methods of ensuring posthumous accessibility of an artist’s works. The problem with wills, bespoke charities, and trusts is that the artist can never be sure the person in charge of their works will continue to respect their wishes about their disposition. Of course, a distributor isn’t perfect either, but a track record of satisfaction and the limited scope of the license should provide considerable comfort. After all, the license only gives the distributor the right to continue distributing the works. And it’s nonexclusive, so it doesn’t enable the distributor to prevent anyone else from also distributing the works, with the copyright owner’s permission.
The problem with adopting a Creative Commons license is that it requires the artist to mostly or entirely abandon the copyrights in their works, a move that many artists are reluctant to make, especially while they are still alive. Many artists want to retain the copyright in their works, so they or their heirs have at least some ability to prevent at least some uses they disapprove. Not to mention the possibility of generating licensing revenue. The Artist’s Posthumous License lets artists keep their copyrights and devise them to their heirs, while ensuring that their distributor will be able to ensure the continued availability of their work.
The problem with copyright transfer is that it requires relinquishing the control provided by copyright, while adding potential uncertainty about the permanence of the transfer. As with Creative Commons licenses, copyright transfer means letting go of copyright-based control over the artist’s work. But it also creates the potential for termination of transfer, long after the deceased artist can do anything about it. The Artist’s Posthumous License is only a nonexclusive license, so it doesn’t require abandoning copyright-based control with respect to anyone but the artist’s distributor. And it’s a nonexclusive license, not a transfer, so termination of transfer isn’t available to the artist’s heirs. Unlike a copyright transfer, a nonexclusive license can be forever.
The Artist’s Posthumous License has a few distinctive features that are worth discussing. It is very brief and simple. That is a feature, not a bug. The license is intended to do one thing. It’s modeled on the Creative Commons licenses and designed to be easy to understand, interpret, and apply. The license is also quite broad, including all of the exclusive rights of the copyright owner. That’s intentional. It’s impossible to know in advance which exclusive rights a copyright owner will need to exercise. In order to ensure that an artist’s distributor will always be able to make their works available to the public, the distributor needs the right not only to distribute and publicly display or perform the works but also to reproduce copies of the works and create derivative works. The license is also transferable, in case the distributor is dissolved and needs to pass the ability to keep an artist’s work available to another distributor.
The Artist’s Posthumous License also includes several optional provisions, included in brackets. In its simplest form, the license consists of nothing more than a perpetual and irrevocable nonexclusive license to use the listed works. But the license contemplates the possibility that artists may wish to place specific limits on the use of their works. It also contemplates the possibility that artists may wish to continue receiving licensing fees for the use of their works and may wish to enable their heirs to also collect licensing fees, offering several different options about how any such licensing fees should be distributed.
Reflections on the Artist’s Posthumous License
This article is based on practical experience. All too often, the works of artists who die without an estate plan will become unavailable, as their heirs dispute ownership and control. It isn’t good for the heirs, because an artist whose work isn’t available to the public is an artist rapidly becoming irrelevant—or even worse, not becoming relevant at the moment it was most likely to happen. It isn’t good for the public, which wants and deserves access to works of authorship. And it isn’t good for artists or their legacies. It’s a truism that artists want to be remembered for their work, but that’s impossible if no one can see it. The Artist’s Posthumous License is intended to solve that problem.
