Beastie Boy Adam “MCA” Yauch, who died on May 4 of cancer, left instructions that his music couldn’t be used in advertising. But this wording in his will, which he added by hand, may not even be valid. If his heirs try to honor it or enforce it, they could get stuck in months–or years–of legal tangles.
Without this provision, Yauch’s 10-page will, filed with the New York Surrogate’s Court in Manhattan on Aug. 6, is relatively straight forward. Yauch left his entire estate, estimated to be worth $6.4 million, to a trust, the terms of which are private. (In contrast, his will is a public document.) He appointed his wife Dechen Yauch as executor. And he included a somewhat creative provision for naming a guardian for their daughter, Tenzin Losel, if she was orphaned. (See “Adam Yauch’s Will Reveals His Private Dilemma.”)
The last line of the will, as his lawyers prepared it, prohibits Yauch’s image or name from being used for advertising purposes—something that celebrities commonly do. But Yauch, who had a reputation for being an iconoclast as one of the members of the most famous and accomplished alternative rock bands, greatly muddied the waters by writing in the words shown here in italics: “in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.”
From a legal perspective, this change opened a can of worms. Here’s why: In a sentence that referred to publicity rights, the words Yauch added introduced the matter of copyright. The two are very different legal animals.
Publicity rights refers to Yauch’s interest, while he lived and in some states after he died, in protecting his image and his name, which had value because he was a celebrity. Legally, they couldn’t be used in advertising without his permission (or that of his heirs). Someone who violated this right could be required to pay a fine for the value of the damages they caused, and turn over any profits they made as a result.
Contrast that right with copyright–the federal law that covers a literary, artistic, musical, or other creative work. Copyright owners have the right to control the use of their work and get paid for it. In the music industry, it covers not only the written composition (sheet music and lyrics), but also sound recordings. To make things more complicated still, the composer of the music and the lyricist are both considered authors.
Yauch could only give away what he owned. So to know whether the handwritten words Yauch added to his will can be enforced, one has to know who owned the copyrights associated with his music.
If the copyrights in the work are owned jointly–say by all the members of the band–then Yauch’s heirs inherited his rights, but each of the other owners can do what they want with the music. If they allow it to be used in advertising, they would simply owe a portion of any profits to the other owners, including Yauch’s heirs. Therefore, his will may tie the hands of his heirs but not the hands of other band members (or their heirs) from using property subject to the copyrights.
But how about his heirs—what can they do? Unfortunately, that’s not clear from the words Yauch wrote in either. Some of the questions that arise: Was he just referring to music or art created solely by him, or to any music or art that he helped create? What did he mean by “advertising purposes?” For example, was he opposed to using his voice in any recordings for profit; using his image on a poster or album cover; or did he just mean he didn’t want to appear on a box of Wheaties or a roadside sign advertising the McDonald’s at the next freeway exit?
Music copyrights are further complicated by a mandatory compulsory license. When songs have been distributed to the public under certain conditions, the owner of the composer’s copyright cannot prevent other artists from “sampling” or making “covers” of the song.
The mandatory license right forces the owner to license the rights to others who may make their own recordings and sell them for a profit. (Whether Monster Beverage exceeded the rights afforded by a mandatory compulsory license, and therefore infringed on the Beastie Boys’ copyrights is the subject of a lawsuit.) Therefore Yauch’s heirs may be forced to license his work, whether or not the terms of his will allow them to derive any profit from it.
All this will greatly complicate the settlement of Yauch’s estate. Publicity rights and copyrights, especially when they involve a Beastie Boy, have tremendous value. For estate tax purposes, it will be necessary to attach a present value to the stream of future income stemming from those publicity rights and copyrights. But how can you value rights when you don’t know what he owned?
It will be extremely difficult to sort this all out before the estate tax returns are due. The value of what he left to his heirs for estate tax purposes must be determined within nine months of his death, and state and federal estate tax returns filed by Feb. 4, 2013. If any tax is due, it will be based on the full value of what Yauch owned, without any reduction for the restrictions he placed on his estate with the words he added to his will.
Yauch was likely making a statement to the world that life is about more than profit. He attempted to exercise control over his name, image and legacy in order to make that point. The sad irony is that Yauch’s heirs may desperately need that profit to pay the legal bills that result from his final act of defiance.
Many thanks to my colleagues, Gary W. Glisson, Anne W. Glazer and Catherine Parrish Lake for sharing their intellectual property expertise.
Part Of Beastie Boy Adam Yauch’s Will, Banning Use Of Music In Ads, May Not Be Valid
Deborah L. Jacobs, Forbes Staff
August 13, 2012