Artists may relish that copyrights last for decades. But do they consider sufficiently their wishes for who will nab their royalties after they are gone and other key estate planning issues?
Although some experts have urged entertainment layers to consider a new field of performers’ post-mortem rights, the continued legal tussling over the works of superstar Prince Rogers Nelson may suggest to some practitioners that not only must they consider long-lived intellectual property concerns like copyrights lasting almost a century, they also just may need greater depth and expertise in dealing with wills, trusts, and estates.
Consider that days before the recent, one-year anniversary of Prince’s death, his lawyers were in a Minnesota district court, filing a complaint that audio engineer George Ian Boxill, a former collaborator, sought to release unheard music of the iconic entertainer without the authorization of Paisley Park Enterprises. State Judge Wilhelmina Wright moved quickly, issuing a temporary injunctionto block the release of a six-song EP. Prince recorded the work, titled Deliverance, between 2006 and 2008 with Boxill.
Fans briefly partied like it was 1999, as Deliverance’s lead song, a track featuring a fierce blues riff, was made available for streaming via iTunes and Apple Music. The EP also was online for early download on princerogersnelson.com for $6.99 or $19.99 depending on audio quality. But Prince’s estate countered with its own version of Let’s Go Crazy, ensuring that Boxill could not release unauthorized tracks, which lawyers argued violated the producer’s recording agreement with Prince.
Streaming sites have yanked down the disputed works. How did the late legendary songwriter find himself in a legal state that might even make doves cry—and why is this condition not unique among famed creatives?
A public life with a quest for privacy
Prince’s estate has made it clear that it believes that Boxill has no legal right to release any music and is doing so only for personal gain. The estate has even gone as far as to contend that “any dissemination of the recordings and underlying music compositions, or fixation of the same in any audiovisual work or otherwise is a violation.” That’s because Boxill, the estate asserts, signed a confidentiality agreement with Prince, stating that all recordings that he worked on “would remain Prince’s sole and exclusive property.” The agreement also purportedly says that Boxill “would not use any recordings or property whatsoever” and “would return any such recordings or property to Prince immediately upon request.”
Prince was known for keeping his personal life private, and some of the paperwork he got Boxill to ink extends a confidentiality agreement to bar the audio engineer from offering up any interviews or writing of books, articles or the like about his creative colleague.
But Boxill, in an announcement about Deliverance, argues that its songs were written and recorded when Prince was an independent artist, a period in which the artist had thrown off working with major record labels because he contended then that the music industry was unjust. Boxill asserts that Prince told him “he went to bed every night thinking of ways to bypass working with major labels and get his music directly to the public.” Boxill claims that his use of RMA, aka the independent company Rogue Music Alliance, supports Prince’s take about the big labels and it promotes his spirit of independence, while also making a “majority” of the proceeds from this album available to his estate.
Judge Wright sided with Prince’s estate in issuing a court order barring Boxill from further releases of the artist’s unheard recordings in any type of medium. For the executors of Prince’s estate, Money Don’t Matter 2 Night, but the judge’s decision also did compel Boxill to send all recordings he had of the music legend to them. Boxill, in turn, has gotten the court to inform the estate that it must post a $1 million bond to keep the injunction in place.
Considerations besides creativity
Prince’s legendary obsession for privacy aside, could he have worked better with his counsel to protect his invaluable creative legacy?
He isn’t the only artist to leave behind unresolved legal issues that end up in court, especially due to his being intestate. Prince’s family has been tied up in court for 10 months after his untimely death, seeking to secure the icon’s music from Universal Music Group for compositions recorded after 1995, including live and demo recordings. The family also struck a deal with Universal over Prince’s song writing catalog—heady materials considering Prince’s innovative harmonic and melodic approaches. Universal is now the administrator of this catalog, as well as a leader in merchandising. But there are reports these deals may be wobbling. The estate even switched its Special Administrator to Comerica Bank on April 11, discharging Bremer Trust from all liability associated with the administration of the estate.
But all of occurred post-mortem, under financial and time pressures on survivors—reminiscent in some ways of the scramble that followed the death of pop mega star Michael Jackson. He left his mother, Katherine, as beneficiary. But at 86-years-old, she found herself fighting on behalf of his estate, now estimated to be worth northward of $600 million. Among other concerns, the idiosyncratic artist had a living trust but failed to properly fund it, leading to probate battles for his family.
Meantime, the late pop diva Whitney Houston left lots for lawyers and judges to sort out simply by failing to update her will, even as her fortune climbed in excess of $20 million. For Heath Ledger, an apparently inadvertent lack of an update to his will to include a daughter, resulted in his $20-million estate going to his parents and three sisters. (See more on these cases by clicking here.) Just stroll through this site, using the search box on the right rail and the search term “estate,” and there are ample examples of performers’ good works lying interred with their bones while legal disputes live after them.
Is there an opportunity for Entertainment lawyers to benefit their artist-clients by suggesting to them, during IP chats, that even some basic, fundamental long-term planning—especially of the post life kind—might be a consideration: Hey, yes, the music will be protected for 95 years but who might be collecting that royalty check decades hence? Surely the late Mr. Nelson would have wanted a sunnier purple reign rather than seeing so much of his legacy dealt with in court?