As interesting as the dispute between the Beastie Boys and
GoldieBlox already is, there is another aspect to this dispute that
makes it even more fascinating. In the public letter that
GoldieBlox issued shortly after filing their suit, GoldieBlox
apologized to the Beastie Boys for its use of Girls in its
commercial becuase this use defied Adam Yauch's final wishes
set out in his will.
One of the three members of Beastie Boys, Yauch died in May
2012, and his will was filed with the New York Surrogate Court in
Manhattan in August 2012, making it a public document. Like many
other celebrities, Yauch's will was drafted to prohibit his
name or image from being used for advertising purposes. Sometime
after his will was drafted though, Yauch added the following words
in his own handwriting to the prohibition on his name or image
being used in advertising:
"or any music or any artistic property created by
From a legal perspective this addition is problematic, and may
not help accomplish what Yauch likely intended. For example, the
additional words in his own handwriting may not be valid as they
were added after the will was already signed in the appropriate
fashion (never add words to your will after it is signed! Make a
new will if you want changes!). There could also be a problem from
a copyright law perspective.
If Yauch's will was interpreted under Canadian law,
"artistic property" that he created that would be
protected by copyright law, would have a term of protection
covering his lifetime, to the end of the year that he died, and
then for another fifty years after that. After fifty years, his
"artistic property" will enter the public domain. Before
entering the public domain, interests in copyright can be passed
from the owners thereof to their heirs by will or intestate
succession. Canada's Copyright Act further states that where
the author of a work is the first owner of the copyright therein,
no matter what agreements they made during their lifetime, every
interest they granted or assigned in their copyright will revert
back to the author's estate, and will devolve on their legal
representatives twenty-five years after the death of the author.
So, even if Yauch had granted all of his interests in his
copyrights during his lifetime, under Canadian law, his interest
would revert back to his estate twenty-five years after his death,
meaning that his will would then control the copyright interest (in
Yauch's case, purportedly prohibiting a grant for advertising
Even though Yauch's will can effectively deal with his
copyright interests, the problems with his handwritten insertion
are still not solved. Assuming that his handwritten insertion is
not invalidated, the trustee(s) of Yauch's estate will have to
determine what is meant by the words "created by me". Are
these words meant to limit the advertising prohibition to creations
that Yauch authored solely, or are they also meant to include
creations that Yauch helped to author jointly with others (i.e. a
song like Girls, authored by the Beastie Boys and Rick Rubin)?
If "created by me" is interpreted broadly to include
works that Yauch authored jointly with others, Yauch's will can
only prevent the trustee(s) of his estate from allowing Beastie
Boys' songs from being used in advertising. It cannot prevent
the other joint authors from granting their interests in the work
of joint authorship, so long as any profits earned are equally paid
to each joint author. This means that the surviving Beastie Boys
could settle the litigation with GoldieBlox by reaching an
agreement that licenses Girls to GoldieBlox for commercial use,
despite the restriction in Yauch's will, so long as his share
of the profits are paid to his estate. This of course depends on
any agreement that the Beastie Boys may or may not have made among
each other with respect to their joint copyright interests in the
As much as Yauch's will won't play a part in the
litigation with GoldieBlox (even if Yauch's handwritten
insertion is valid, as a finding of fair use would prevail), this
part of the story is but another example of the importance of a
well drafted estate plan that takes into account every type of
property that will form part of an estate, in order to effectively
carry out the final wishes of the deceased.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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