Subotnik Publishes on Posthumous Art and Presents on Britney Spears

Professor Eva Subotnik’s book chapter, “Dead-Hand Guidance: A Preferable Testamentary Approach for Artists,” has been published in Posthumous Art, Law and the Art Market: The Afterlife of Art, co-edited by Sharon Hecker and Peter J. Karol (Routledge, 2022). As described on the publisher’s website, “[t]his book takes an interdisciplinary, transnational and cross-cultural approach to reflect on, critically examine and challenge the surprisingly robust practice of making art after death in an artist’s name, through the lenses of scholars from the fields of art history, economics and law, as well as practicing artists.” Here is an abstract of Subotnik’s chapter:

Postmortem copyrights in the United States allow for the control of art long after the artist has died. Successors to these interests, and even the public generally, may have bona fide reasons to encourage visual artists to be specific and comprehensive about the ways in which artwork is to be reproduced and used after the artists’ deaths. Nevertheless, this chapter cautions that efforts to encourage visual artists to provide guidance should simultaneously discourage any attempts to make these instructions binding. First, it is not clear that purportedly binding testamentary instructions about these matters will be effective. Second, the proliferation of such instructions may run counter to the goals of copyright law, raising the question of whether they should be effective. In short, in these matters, dead-hand guidance is preferable to dead-hand control.

In addition, Subotnik and her co-author Professor Andrew Gilden presented their forthcoming article, “Copyright’s Capacity Gap,” an interdisciplinary paper on legal issues growing out of the Britney Spears conservatorship, at two workshops this spring: the Critical Trusts & Estates Conference 2022, and the Mid-Career Intellectual Property Scholars Workshop.

Eva E. Subotnik
Professor of Law
Associate Dean for Faculty Scholarship
Faculty Director, St. John’s Intellectual Property Law Center (IPLC)

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