ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Wednesday, October 20, 2021

A Two-Part Post from Sid Delong

“D” is for Dead Hand Control
Sidney W. DeLong

Art may be immortal, but artists must all die: ars longa, vita brevis. Yet, a little piece of the artist survives in immortal artwork, and an artist in contemplation of death might hope to preserve that little piece unchanged for as long as her art survives. Unfortunately, artists seeking to control the form and treatment of their art after their death have few options. Generally, the future owner will have complete control over the work, except to the extent they may be restrained by a droit moral from mutilating or changing it.  See Joachim Pierer, Authors’ Moral Rights after Death: The Monistic Model of German Law, Austrian Law and the Revised Berne Convention.  

Aisforalibi-pbOtherwise, artists must generally trust to the good faith of the owners of their work to preserve their creations. As an example of a failed attempt at dead hand control, consider the late Sue Grafton, wildly successful author of the alphabet series of mystery novels beginning with “A” is for Alibi.

Before writing the series, Grafton had seen one of her earlier novels made into a movie and, according January Magazine, she thought it “terrible.”  

She then had a brief career as a screenwriter, where she saw the damage that could be inflicted on a novel when it fell into the hands of screenwriters and directors: She was determined that her alphabet series would not suffer the same fate. Most especially she did not want any actor’s face to displace her readers’ images of her fictional protagonist Kinsey Millhone:

I will never sell [Kinsey] to Hollywood. And, I have made my children promise not to sell her. We've taken a blood oath, and if they do so I will come back from the grave: which they know I can do. They're going to have to pass the word on to my grandchildren: we do not sell out our grandma. I just will not let them touch her. I've trashed other writers, I'm not gonna let them have a crack at me.

Nice try. According to deadline.com, a mere two years after her death in 2017, her family cashed in, licensing her alphabet books in 2021 to A&E for a television series. 

Many Grafton fans are furious at the cold-blooded violation of her wishes. How would a first-year contracts class answer their question of whether the Grafton blood oaths are legally enforceable?

The class would first take the perspective of a litigator and from that perspective the answer is unclear. We do not know whether the family’s promises were enforceable as bargain contracts with consideration. She may have given consideration for the promises by saying: “I promise to leave my copyrights to you when I die but only if you promise me that you will never license any of the alphabet series for dramatization.” In the unlikely event that she had the foresight to make this deal, then she would have given consideration for their return promises.  

In the absence of such a bargain, it is unlikely that the promises are enforceable under a theory of promissory estoppel, which enforces non-bargain promises to the extent necessary to prevent injustice. Even if Grafton did foreseeably rely on them in some way in life, as e.g. by failing to make other provision for the administration of her copyrights, where is the “injustice” in breaching a promise that harms only a dead person? And to whom will reliance damages be awarded?

Finally, the broken promises may ground a claim in restitution, premised on the theory that it is unjust for the family to profit from their own wrongdoing by ownership of the copyrights, a gift they accepted on condition that they keep their promises. Unfortunately, if they must return the copyrights to the estate under this theory then the family will probably reacquire them as proceeds of Grafton’s estate that did not descend by her will.

Many would agree that Grafton’s husband and children were morally obligated to perform their blood oaths and to respect her wishes, but every first year law student knows that mere moral obligation does not constitute valid consideration in modern contract law.  “The Forum of Conscience” issues no enforceable writs.

Grafton’s fans might reasonably ask whether the family’s promises should not be legally enforceable as “blood oaths.” Sadly, very few promises are made legally enforceable by form or ceremony alone. However, although the blood oath theory has not yet been recognized as a legal basis of enforcement, perhaps it should be. A blood oath accompanied by the promisee’s threat to haunt the oath-giver if the oath is breached certainly seems to fit the cautionary, evidentiary, and “channeling” functions we seek from contractual formalities. Perhaps recognition of the blood oath awaits the next Restatement.

Taking the other perspective that we urge contracts students to take, suppose they looked at the problem from the other end, as a planning problem rather than as a litigation problem:

“You are counsel to Sue Grafton. She wants to make sure that none of her alphabet series is ever adapted for the screen after her death. What solutions can you suggest and how confident are you that they will work?”

Hammer
Contracts students will naturally think of a contract solution: To a hammer, everything looks like a nail. Their first job is to create an enforceable promise by means of a bargain with consideration. In return for the family’s promises, Grafton might give consideration in the form of a cash payment or a promise to convey the copyrights. The exchange could be memorialized in a signed contract. Grafton could be assured that a bargain contract is more enforceable than a blood oath and that an order of specific performance enforceable by civil contempt is more threatening than a haunting.

But will the creation of an enforceable contract really solve Grafton’s problem of post-death control of her work? What will become of Grafton’s personal contract rights against her family when she dies? The class should be able to answer this one from having read the many canonical contract cases involving post-death claims and defenses.  Hint: Grafton’s inter vivos contracts will not become legally enforceable by her ghost. At death, all of a decedent’s executory contract rights will first become part of her estate to be administered by her executor. Then they will be distributed (along with the copyrights and other property) to her legatees, her husband and children. But these are the very people against whom the contract claims exist! Whether or not contract rights are extinguished by merger in such a case, the contracts will never be enforced unless one of the legatees has a financial or moral incentive to enforce Grafton’s rights against the others. Their behavior in the actual case suggests that their financial interests outweighed their moral ones.

A second problem with the contract solution also looms. Even if her legatees are all willing to perform their promises, the promises remain effective only for so long as the promisors continued to own the copyrights, which will continue for 70 years after Grafton’s death. The family’s promises would not bind any third parties who may acquire ownership of the copyrights, whether in a voluntary sale or an involuntary transfer, e.g. to a bankruptcy trustee or judgment lien creditor. Most especially, they will not bind their unborn grandchildren, who have never promised grandma anything. In the language of real property law, the covenant preventing filming will not “run with” the copyright.

A final problem with the contract solution lies in the insufficiency of the promise to achieve the desired result. A copyright must be enforced in order to be effective. The family’s promise not to sell the work is useless to Grafton if they will not also promise to enforce her copyright by preventing infringing movies.  

So the students in Contracts class must learn a bitter lesson. Sometimes a hammer is not the best tool for the job. This brief analysis suggests that Grafton does not have a contracts problem so much as a property problem whose solution may lie in the thinner curricular air above that breathed by mere One-Ls. By the time they graduate, students should have learned how critical these other doctrines can be to the solution of even the simplest planning problems, as will be seen in the next post.

https://lawprofessors.typepad.com/contractsprof_blog/2021/10/a-two-part-post-from-sid-delong.html

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