Life After Death: Artistic Control from Beyond the Grave

Henry Raffel

Jane Austen never finished writing Sanditon, but that did not stop others from trying. Austen’s own relatively somber vision for her manuscript, displaced by her passing, found new vistas in the warmer eyes of Alice Cobbett whose continuation added shipwrecks and married off a main character to a man mentioned for the first time on the last page.[1]

When Bashar Jackson—better known as Pop Smoke—passed, he had released zero studio albums. Today, he has two.[2] Yet Faith, his second posthumous album and a Frankenstein creation of “unfinished records, demos, and reference tracks,” has “the energy of a college paper struggling to hit the word count,” and  unsurprisingly “feels out of line with Pop’s music.”[3]

Other artists have grown worried about this pattern. George R.R. Martin does not want anyone to finish A Song of Ice and Fire. However, he is resigned to merely say “[n]ot while I’m alive … [b]ut one thing that history has shown us is eventually these literary rights pass to grandchildren or collateral descendents [sic], or people who didn't actually know the writer and don't care about his wishes. It's just a cash cow to them.”[4]

Anderson .Paak likewise doesn’t want any confusion about his wishes. Instead, he had “When I’m gone please don’t release any posthumous albums or songs with my name attached. Those were just demos and never intended to be heard by the public” tattooed on his arm.[5]

Something seems wrong to me here. Why are others fundamentally altering a dead artist’s works? There may be a simple answer, profit, but property law has long imposed mandatory rules against dead hand control, perhaps most obviously exemplified by the Rule Against Perpetuities.

Yet, the door to dead hand control may not be entirely shut if “the function of a suit to construe a will is to ascertain and effect the intention of the testator.”[6] Daniel Kelly argues that effectuating the donor’s intention may provide the best incentives to increase social welfare law, and extends this argument to cases of dead hand control.[7] Kristen Smolensky points out that the dead retain dignity and autonomy interests, and so ought to have some “posthumous rights.”[8]

Perhaps most persuasive, however, is the expressive effect of enforcing an instruction regarding unfinished art.[9] An instruction to not “finish” the art of the deceased does not stand alone from the art itself. Such an instruction “can bespeak an artist’s views of [themselves] and [their] own literary creations.”[10] “By enforcing such orders … a court can assist an author like Kafka, who ‘may wish to send a message to the public that he is not the type of artist who will tolerate, let alone publish, inferior works.’”[11] Martin and .Paak would surely agree.

I believe that such instruction should be permitted and honored “until copyright law no longer permits an author or [their] successors to enjoy that degree of control—that is, for seventy years following [their] death.”[12] This seems a happy medium to me. While it may not ameliorate all of Martin’s fears, it provides enough time to stop widespread callous profiteering against the wishes of the recently deceased while prohibiting perpetual dead hand control and its associated costs.

J.R.R. Tolkien’s heirs never allowed someone else to write a new novel set in Middle-Earth. “I'm sure there are publishers waiting in the wings with giant bags of money just waiting for someone to say 'yes, go ahead, let's write Sauron Strikes Back'. I hope I never see Sauron Strikes Back …”[13]



[1] Anthony Lane, Reading Jane Austen’s Final, Unfinished Novel, New Yorker (Mar. 5, 2017), [] [].

[2] Alphonse Pierre, Pop Smoke:  Faith Album Review, Pitchfork (July 21, 2021), [] [].

[3] Id.

[4] Giles Hardie, Game of Thrones Author George R.R. Martin Rule Out Sharing Westeros, Sydney Morning Herald (Nov. 11, 2013), [] [].

[5] Chris Willman, Anderson .Paak Gets a Key Part of His Will Tattooed on Arm:  No Posthumous Albums, Variety (Aug. 17, 2021), [] [].

[6] Williams v. Est. of Williams, 865 S.W.2d 3, 5 (Tenn. 1993).

[7] Daniel B. Kelly, Restricting Testamentary Freedom: Ex Ante Versus Ex Post Justifications, 82 Fordham L. Rev. 1125, 1127 (2013).

[8] Kirsten Rabe Smolensky, Rights of the Dead, 37 Hofstra L. Rev. 763, 774–75 (2009).

[9] David Horton, Testation and Speech, 101 Geo. L.J. 61, 85 (2012).

[10] Eva E. Subotnik, Artistic Control After Death, 92 Wash. L. Rev. 253, 294 (2017).

[11] Id. (quoting Lior Strahilevitz, The Right To Destroy, 114 Yale L.J. 781, 833 (2005)).

[12] Id.

[13] Giles Hardie, Game of Thrones Author George R.R. Martin Rule Out Sharing Westeros, Sydney Morning Herald (Nov. 11, 2013), [] [].