Eva E. Subtonic, of St. John’s University School of Law, has made available for download her article, “Copyright and the Living Dead?: Succession Law and the Postmortem Term,” published in  29 HARV. J.L. & TECH. 77 (2015).  The abstract reads as follows:

A number of commentators have recently objected to the existence of any postmortem period of copyright protection. Absent from the contemporary debate over this issue, however, is a systematic study of how longstanding succession law theories and doctrines, which govern the at-death transmission of other forms of property, bear on the justifications for, and scope of, postmortem copyrights. This Article takes up that task. It applies the justifications for, and incidents of, the generally robust principle of testamentary freedom to the particular case of copyrights.

The comparative analysis undertaken here suggests two principal lessons. First, succession law principles do provide discrete, though qualified, support for a postmortem term that, in addition to property theories more generally, should be considered in any rigorous debate over copyright duration. Second, more precision should be used in categorizing the costs associated with postmortem protection. In particular, in many instances the costs should be conceptualized as resulting from suboptimal stewardship by the living rather than from dead-hand control. This is not merely a matter of semantics. Distilling the most pressing costs is key to identifying the most appropriate means of addressing them, such as the shortening of the postmortem term, the reining in of dead-hand control where it does exist, and/or the instantiation of better stewardship practices among the living.

Download full article at: Copyright and the Living Dead?: Succession Law and the Postmortem Term by Eva E. Subotnik :: SSRN

Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.