Liberating Estates Law from the Constraints of Copyright

Abstract

This Article addresses a disturbing statutory phenomenon of enormous importance to any artist, composer, writer, scholar, scientist or innovator. The phenomenon, which I have termed “estate-bumping,” has driven an unintended wedge between copyright law and estates law by effectively preventing authors of copyrights from disposing of their copyright interests through common estate planning mechanisms. Current copyright law imposes a unique restraint on the testamentary freedom of copyright authors, a restraint not imposed on any other type of property owner. In effect, this restraint enables unintended beneficiaries to rewrite, or “bump”, an author’s estate plan. Thus, it is copyright law – rather than the authors – that determines who ultimately has the right to profit from the author’s works. Based on a historic, philosophical and doctrinal examination of estates law and copyright law, this Article demonstrates that the phenomenon of estate-bumping remains a pressing problem. To cure this problem, the Article suggests two simple yet significant changes to reconcile the presently disconnected regimes of estates law and copyright law. Without these changes, however, the era of estate-bumping and the potential, unintentional transfers of massive amounts of wealth will begin.

Keywords: wills, trusts, estates, intestacy, estate planning, copyright, intellectual property, testamentary freedom, freedom of testation, authors, artists