St. John's University Law Faculty Blog

Professor Eva Subotnik’s article, Copyright and the Living Dead?:

Eva Subotnik

Succession Law and the Postmortem Term, forthcoming shortly in the Harvard Journal of Law & Technology, was reviewed on PrawfsBlawg by Andrew Gilden.

In her article, Subotnik argues that succession law principles provide discrete, though qualified, support for a postmortem copyright term and that 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. 

In his post, Gilden writes that “Subotnik’s article makes at least two important contributions to the literature: First, she brings copyright law more explicitly into conversation with trusts & estates theory and scholarship….Subotnik provides some useful new ways of using succession law to think about the very long postmortem copyright term, and her article more broadly reads as a blueprint for some fruitful conversations between and among copyright and T&E scholars….Second, Subotnik’s article begins the useful task of disaggregating the initial ‘life’ term from the ‘plus 70.’…As Subotnik observes, succession laws generally recognize the strong desire for individuals to provide for their loved ones, the sentimental attachment to particular items, and an interest in preserving legacy.  Structuring copyright around a postmortem term might accordingly provide a qualitatively different set of incentives than the financial incentives typically acknowledged in the case law.…Definitely worth a read!”