Article on Postmortem Copyright Law
Eva E. Subotnik recently published an Article entitled, Copyright and the Living Dead?: Succession Law and the Postmortem Term, 29 Harv. J.L. & Tech. 77 (2015). Provided below is a summary of the Article:
Intellectual property (“IP”) policy in the United States is primarily aimed at stimulating the creative, inventive, and socially enriching behavior of the living. Yet one key aspect of our incentive-based regime is intimately linked to the death of the creative contributor. Specifically, the term of copyright generally lasts for seventy years following the death of the author. Such a feature is not the product of policy choices in place from time immemorial but rather reflects a contemporary decision to link the duration of exclusive rights to some fixed point in time beyond the author’s death. In particular, until the 1976 Copyright Act, copyright protection lasted for a set (albeit lengthy) term of years without regard to the timing of the author’s death.
The question of what precisely is accomplished by a copyright term structured to outlast each author in every case–as a discrete question from the overall length of the term–is intriguing. In theory, the postmortem feature yields the same benefits as would a lifetime term: it provides an author with the prospect of realizing a return on her work over the course of her entire lifetime. It also spares her from the need, later in life, to compete with her own works that might otherwise have entered the public domain. Most directly, the postmortem feature may allow her to provide for her loved ones (people or organizations) should she die before her work attains its full value in the marketplace.
This Article proceeds as follows. Part II outlines the methodological approach for the comparative analysis. Part III traces the evolution of copyright duration under U.S. law. It lays out concrete differences between the exploitation of a copyright while an author is alive and following her death. Part IV discusses the theoretical justifications for, and doctrinal elements of, American succession law with respect to property more generally, which it then applies to copyright interests. Part V categorizes the costs associated with the postmortem term and begins to develop appropriate solutions.