Speaking from the Grave. Should Copyright Listen?

Should authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review). Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s integration into artistic or literary culture, under the law, heirs and literary estates have the power to exercise control over the work’s continued use and dissemination. This enduring control may be troublesome for reasons related to the special contours of intellectual property shaped by both private rights of exclusion and public rights of access to culture and knowledge. The longer that exclusive control over works is exercised into the future, the slower the public domain is enriched to promote the constitutional prerogative of “progress of science and the useful arts” through copyright. This is not just a problem of copyright duration, which has continued to lengthen since its U.S. origins of fourteen years in 1790. It is also a problem for an author’s purposes and hopes for a work, which can shift over a lifetime with changes to cultural production, aesthetics, and business practices, to say nothing of personal predilections and personality