[Guest post] Anderson .Paak got a new tattoo- and we might have an idea why

I have the pleasure of hosting the following guest contribution by Despoina Dimitrakopoulou and Simon J. Fritsch, both talented and enthusiastic former students of mine, which - while reviewing Anderson .Paak's latest tattoo - discusses post-mortem moral rights protection and the value of a tattoo as an ... advance (IP) directive.

Despoina and Simon also recommend some music background by Anderson .Paak to accompany the reading of the article.

Enjoy!

Anderson .Paak got a new tattoo- and we might have an idea why

by Despoina Dimitrakopoulou, L.L.M & Simon J. Fritsch, L.L.M

Very recently Anderson .Paak showed off his new tattoo stating “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.” Taking a whiff of it, and sensing a legal flavour, it immediately attracted the attention of two Kittens. What is the legal framework around posthumous released art and what is Anderson .Paak afraid of?

This is not the first time that posthumously released art becomes the subject of attention. Some years ago the posthumous releases of music by Michael Jackson, Queen and Amy Winehouse were received with great excitement from their fans longing for another ‘piece’ of their idols. Seven out of eleven of Tupac’s platinum albums were released after he died, selling more than 75 million records. However, there is not always a positive reaction when it comes to art being released after the death of an artist. Most recently, the album releases of rappers Popsmoke and XXXTentacion attracted a lot of mixed comments on lost quality of the artists voice, deviation from their artistic and personal narrative, and excessive featuring of other artists. Release of art after the artist has passed away appears in other forms too. Apart from music, examples include Dan Flavin’s fluorescent light sculptures, Andy Warhol paintings and the most recent project of Cristo, The wrapping of the Arc de Triomphe.

Posthumous releases and realisation of unfinished works come with controversial stories. While some artists like Cristo or choreographer Mark Morris accept or arrange for their works to be released or continued after their death, others keep silent on the future of their works, by default leaving it to the hands of third parties to decide their fate after they are gone. In Amy Winehouse’s case, after the release of album ‘Lioness: Hidden Treasures’, compiled of B-sides and demos, Universal Music CEO announced that he had destroyed all of her demo recordings, in an attempt to prevent anyone else from releasing them posthumously. When such extremes as destruction of art, or the unwilling release of it, could be the future of someone’s legacy, it is no wonder that Anderson .Paak felt it was imperative to make his will for his legacy ink-on-skin-clear. But would that be enough? What (other) means do artists have to make sure their intentions are respected?

The legal framework

Looking at moral rights and copyright protection on an international level, Article 6bis of the Berne Convention warrants the protection of moral rights after death, at least until the expiry date of the granted economic rights, which is a minimum of life plus 50 years. The question still remains on how these rights will be exercised and enforced; if the will of the deceased does not translate to an express prohibition of releasing their art, what will stop third parties, such as their heirs or licensees, from reaping the benefits of this unpublished art? And who determines how the unspoken intent of the deceased artist should be interpreted?

With copyright being in most cases not a public but a private right, it entails private autonomy, allowing - within the limits of dispositive national rights - free contracting over copyright assets and estates. Next to licensing, lending or selling those estates, making their fate part of a will is also a viable option for many. For Anderson .Paak that might have been the motive behind his tattoo, making sure that use of his copyright will be made by his rules after death, using his skin as testimony of his will. But what happens with those who did not act on their intentions, because they passed away unexpectedly?

In general, for every kind of economic right, as long as the author has not explicitly included their desire in a legally binding will, the heirs are free to exercise their bequeathed economic rights according to their own discretion. However, from a moral rights perspective, and the aspect of alteration of work, the use of snippets, demos or sketches, i.e. work that was not meant to be released in this state, with no features planned, no beat produced, no mixing or mastering done with the personal touch or permission of the author, undoubtedly involves unwilling alteration of the artist’s work. Exploitation of such unfinished work after death, for artists like Anderson .Paak, inevitably affects their legacy. Would a prudent expression of will, on a tattoo nonetheless, be enough to prevent such a scenario from taking place?

If we look deeper into how different countries treat posthumous moral rights, we will be able to discern two approaches: According to the first approach, followed in countries like Germany and Austria, economic and moral rights form one inseparable union and are thus inherited and may be enforced by the same subjects, the author’s heirs. The other approach, followed by France, sees economic and moral rights as different entities, with moral rights becoming part of the author’s personality rights after death, making it possible for economic and moral rights to be owned and enforced by different subjects. Therefore, in theory, the heirs could enforce the moral rights of the deceased, fulfilling an obligation towards the artist, and at the same time not being biased by jeopardising their economic benefits.

Different models

When it comes to the subject of exercise and enforcement of moral rights, two models were suggested: the Succession Model which gives the successors full control over the estate of the deceased, in absence of their express will, whereas the Trust Model does not allow the heirs to ignore the intentions of the dead artist, even in the case where they were not expressly voiced. Following the Trust Model, the intent of the deceased artist is ‘frozen’ at the moment of their death. It is for the ones deciding about the inherited estate or assets, to respect and follow the intention of the artist in the moment of his death. Therefore, .Paak’s bold tattoo move would probably grant him enough protection in countries, like Germany, that follow the Trust Model, since he has voiced, loud and clear what his intention for posthumous release of his work is, and that would be enough evidence to prove his intention and safeguard it. Interestingly the Bundesgerichtshof (German Federal Court of Justice) had to deal with a similar matter in several cases, the most memorable of which concerned the change of a stage design for the Oberammergauer Passion Play. In that case the Court stated that ”…the assessment shall be based on the personal interests of the author, which are exercised by the claimants as his legal successors after his death; whereas possible own interests of the plaintiffs – i.e. interests not connected to the deceased and not inherited – are to be disregarded”, in essence giving precedent to the author’s intent rather than the personal gain of parties having power of the author’s estate. For countries that follow the Succession Model, however, Anderson .Paak had better put ink on paper too, and expressly prevent such use of his unreleased art in his will and testament.

Concluding thoughts and closing meows

Whatever model is followed, the dilemma between economic loss and following the artist’s intent still remains, since usually the ones inheriting are the ones that would be gaining from posthumous releases, and would most likely refrain from enforcing the deceased artist’s rights for the sake of personal gain. As a result, a lack of express will in countries following the Succession Model would leave little to prevent these parties from using the works of an author, in such a way that could injure the artist’s legacy, for example by releasing work that is beneath the artist’s calibre, bearing their name, or that goes to a different ideological direction.

It would seem that voicing expressly what the fate of one’s art should be after death, in a legally binding way, is the best way to go to protect one’s legacy, since it would barely leave space for interpretation. Maybe that is what Anderson .Paak is singing about after all in his famous song ‘Your (he)art don’t stand a chance’ (...if you don’t expressly voice your intention or put it in your will!).