When a person writes a novel, composes music or creates a painting, not only does she become the owner of the work, but she also holds the potentially valuable “intellectual property” rights to exclusively profit from her efforts. Such rights are protected by federal copyright and trademark laws (just as inventions are protected by patent law), and in many cases survive the producer. Various estate planning techniques should also be used to protect future owners of these rights.
To illustrate, let’s look at three current situations involving the intellectual property of Jerry Garcia, Jimi Hendrix and Franz Kafka. I found reference to these intriguing cases at Texas Tech Law Professor Gerry Breyer’s Wills, Trusts & Estates Prof Blog, which is deservedly a popular and highly-rated site amongst attorneys (and others too).
Garcia — It was recently reported that Grateful Dead Productions and Garcia’s Family LLC will not allow their music to be used in an upcoming biopic based on Garcia’s life, which ended too soon in 1995. The two entities have long owned and protected the music’s copyrights, and the Family LLC strategy has presumably kept these interests intact in his family. Proper planning has created a position of strength from which the Garcia family could easily make their decision.
Hendrix – In 2006, a London newspaper gave away over a million free copies of a CD containing recordings from a live Hendrix Experience concert that was previously unreleased. The Last Experience, Inc., copyright owner of the concert recordings, and Experience Hendrix, the Hendrix family Limited Liability Company (hereinafter “LLC”), sued and recently won a judgment against the paper for over $250,000.
Instructive here is that as opposed to Garcia’s planning, Hendrix died without leaving a will. The case is merely the latest in a long string of litigation regarding his estate and the rights associated from his music since his death. After many years of in-fighting, his family eventually made millions of dollars through creating several companies and numerous trademarks using his likeness. But further planning and implementation, perhaps during his rise to fame, could have saved his family a great deal of strife.
Kafka – An even more drastic example of insufficient planning involves ten safety deposit boxes full of unpublished Franz Kafka essays. Ownership of these works is still in dispute more than 85 years after his death, even though Kafka left a will instructing his publisher friend to destroy them. Instead, his friend, and later his friend’s secretary, gradually published and sold off most of the works until the secretary’s death three years ago. Her two daughters are currently in litigation with the Israeli National Library to determine the fate of the unsold essays.
It is certainly arguable that the publisher’s decision to keep Kafka’s works has had a broad and positive impact on Western literature. However, either his lack of proper guidance in his will or the publisher disobeying Kafka’s testamentary wishes has created an extreme and seemingly unending circumstance that appears to have been avoidable.
Conclusion — If you have created a work of art or a useful invention that may have future value, let the Garcia, Hendrix and Kafka examples illustrate the importance of creating a plan to protect your loved ones and your innovative works.