They say that the pen is mightier than the sword. This is one of those examples where that saying is true.
For those of you who are children of the eighties, the Beastie Boys have probably touched your lives, or at the very least, your ears. An iconic hip hop act with a Hall of Fame career that has spanned three decades thus far, the Beastie Boys have given us many classic songs such as “(You Gotta) Fight for Your Right (To Party),” “No Sleep Til Brooklyn,” and “Sabotage.” Sadly, one of the members of the Beastie Boys, Adam “MCA” Yauch, recently passed away of cancer, leaving behind his wife, daughter and an estate of approximately $6.4 million.
Fortunately, Mr. Yauch had the foresight to put together an estate plan to allow his loved ones to easily carry out his wishes in the event of his passing. However, he made a mistake which may cost his estate dearly. Regrettably, Mr. Yauch decided to take pen to paper and amend a portion of his will. Now, Mr. Yauch is not alone in making this mistake. Clients often cross out sections of their estate documents or write additional notes in the margins, much to the chagrin of their estate attorneys. The main reasons why clients are typically discouraged from engaging in such independent editing are 1) clients may not be aware of the unintended consequences of their amendment and 2) clients may not be able to draft an amendment which clearly reflects their true intent. I hope that Mr. Yauch’s situation will serve as a real life example as to why it is generally best to consult with your attorney if you are considering making changes to your estate plan.
In the case of Mr. Yauch, his attorneys drafted him a will with the following provision:
“Notwithstanding anything to the contrary, in no event may my image or name be used for advertising purposes.”
This is not an atypical clause for a celebrity.
However, Mr. Yauch, interlineated an additional handwritten phrase so that the will now reads:
“Notwithstanding anything to the contrary, in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.”
The original clause was meant to protect the use of Mr. Yauch’s image and name, otherwise referred to as his publicity rights, which according to New York State Law, are protected for 70 years after his death. However, by editing his will, Mr. Yauch raises a whole new host of copyright issues which will likely be litigated over many years to come.
Unlike publicity rights, which are regulated by state law, copyrights are regulated by the federal government. According to the United States Copyright Act, as the creator of a musical, artistic or other creative work, Mr. Yauch has the exclusive right to publish, sell and control the use of his work. After his passing, this same right is then represented by his estate. Of the numerous copyright issues his estate must confront, the most prominent is the true intent of his amendment. Did he mean for this amendment to apply only to works solely created by him? Or did it include works he created with others or in his capacity as a member of the Beastie Boys? How broadly did he consider the term “advertising?” Should this include promotional marketing for the Beastie Boys Greatest Hits Album or is this limited to marketing for large corporations like Coca-Cola or Pepsi? These issues will most likely take years of litigation to resolve.
Had Mr. Yauch brought up these issues to his attorneys, they could have properly determined his intent and drafted language which specifically laid out exactly what he wanted, while taking into account the various wrinkles in the law which would have an affect on his estate. This way, Mr. Yauch could have had his wishes represented while avoiding unnecessary litigation and making sure that any other unintended adverse consequences were eliminated.
Brian Y. Chou, Esq. is an estate planning attorney based in Southern California at the Law Firm of Barth Calderon, LLP