“The show It must go on, ”Freddie Mercury sang. Also, of course, the benefits. There are artists who, after their death, become the goose that lays golden eggs for their heirs. Four decades after his passing, Bob Marley, the king of the reggae, is the eighth famous dead who made the most money last year, according to the list Forbes; a classification that crowns another king, in this case of pop, Michael Jackson. Managing royalties for these celebrities is a very profitable business, but it can lead to a multitude of legal problems.
First of all, the fierce disputes over the inheritance of some of these artists are known. Generally, the persons designated in the author’s last wishes will be the headlines, or those indicated by law in the event that he dies intestate, as happened with the singer of One Love. His mother, his wife Rita Marley, and their 11 recognized children had to wait ten years for a Jamaican court to award their assets. The small label Island Logic Records took over the songs. Due to his Rastafarian beliefs, Marley had not made a will, leaving his offspring without legal cover. In Spain, points out Antonio Cueto, a partner at Bird & Bird, “if there are no heirs, these rights may end up in the hands of the State.”
The main sources of income for deceased musicians are, on the one hand, the royalties as a performer and, on the other, the copyright if they were also songwriters. Succulent benefits to which to add those from registered trademarks (his artistic name), as well as “from certain uses of the artist’s image and biography and possible new works based on his songs, such as, for example, a musical” , says Manuel López, an expert lawyer in music law at Sympathy for the Lawyer.
As with patents, the law sets a deadline for economically exploiting the artistic legacy. Once this time has elapsed, the works become public domain and there is no need to compensate for their use. In Spain, since 1987, copyright lasts 70 years after the death of the composer, counting from January 1 of the year following the death. As for the compensation as a performer, the duration is 50 years from January 1 of the year following the recording, or 70 years if it was published on a phonogram to which the record company also has rights.
However, these deadlines may vary from country to country. Javier de Torres, a lawyer specializing in music legislation, regrets that there is not even a complete harmonization within the European Union, “which is a problem with regard to the effectiveness of a single market.” At least, the Berne Convention, of which 170 States are parties, establishes a minimum period of 50 years.
The death of the author does not change the intervention of the rest of the agents that participate in the commercialization of the work (record companies, music publishers or management entities such as the SGAE), “but it can greatly complicate the situation,” says De Torres.
Conflicts may arise over compliance with the stipulations of record contracts formalized during the artist’s lifetime. Sometimes, López explains, these agreements have to be updated due to the fact that when they were signed “the digital exploitation of the songs was not even contemplated.” In these cases, “it will be necessary to agree on a royalty percentage adapted to the characteristics of these platforms.”
Normally, points out Paula Sánchez, an expert in intellectual property at Legal & Arts, “the problems usually come from the improper use of the author’s work.” A recent example is the lawsuit filed against Nirvana by the granddaughter of CW Scott-Giles for the use of an illustration on vinyl and objects of merchandising from the band. In Spain, a court sentenced the film’s producer in 2018 Have a good trip, Excellency! to pay 26,000 euros for including whistled fragments of Face in the sun without the consent of the composer’s heirs.
For successors to act against possible violations, there are injunctions or compensation. However, De Torres points out, there are certain differences in treatment. As he explains, in the United States they are more expeditious and can lead to much higher sentences “when applying figures already assessed in the law (statutory damages) “. It may happen that “the injured party seeks the jurisdiction that suits him best.”
In addition to receiving the income for the exploitation, the descendants are also responsible for ensuring the memory and the artist’s catalog. What never prescribes, points out Jorge Gonzalo, a lawyer at Legal & Arts, “are the moral rights over paternity and integrity of the composition.” In this way, the designated persons may always demand recognition of the authorship of the work or prevent any attack against it. In practice, says Manuel López, “they are the key to allow or block possible projects that will give a second life to the musical career of the deceased.”
Nowadays, the use of artificial intelligence to revive and revive stars like Maria Callas or Whitney Houston is fashionable. In these cases, Gonzalo warns, “you must have the authorization of the heirs, as happened with Lola Flores in the Cruzcampo announcement.” In addition to demanding image rights, Antonio Cueto adds, they can refuse if they understand that the post-mortem use of the image of their relative “can distort their memory.”