Monday, August 13, 2012
As I have previously discussed, Adam Yauch wrote in his will that he did not want his music and artistic property used in advertising. I also previously mentioned that the provision itself was interesting because the rapper and co-founder of the Beastie Boys hand wrote the provision into his will. This could mean that the provision in the will might not be valid, and could cost Yauch's heirs a small fortune in time and money trying to see about whether they could enforce the provision.
The problem with the new provision in the will is that Yauch is seeking to control matters that may be out of his control. The original provision in the will referred only to publicity rights. Now, by adding the handwritten words to the will, Yauch is seeking to control matters under copyright law. From a legal standpoint Yauch owns his publicity rights, and the people seeking to use his fame would need his permission. On the other hand, Yauch might not be the owner of the copyright to his music or artistic property; thus, he would not be entitled to control its use. The true copyright owner has the right to use Yauch's artistic property and be paid for its use.
The problem with this is that a number of people might have had control of the copyright, and Yauch's provision could have a different effect than what Yauch intended. For example, if he and the other members of the band owned the copyright then the other members of the band could still use the copyrighted material while it might restrict his heirs' ability to use the copyrighted material. Additionally, there could be problems with how the provision will be interpreted and to the types of advertising that Yauch was referring to. In addition, the family might be forced to license his rights anyways under a mandatory license rights. Furthermore, all of this will complicate the settlement of the rapper's estate. Because the copyright and publicity rights of Yauch have great value, the estate tax might be larger than the estate is able to pay. The reason for this is that value is determined without consideration for any of the limitations that the testator placed on the how the property will be used. So, Yauch's estate might incur a large estate tax without the ability to use Yauch's property to pay the estate tax.
See Wendy S. Goffe, Part of Beastie Boy Adam Yauch's Will, Banning Use of Music In Ads, May Not Be Valid, Forbes, Aug. 13, 2012.