WHAT ABOUT THE AUTHOR'S WORK AFTER HIS DEATH?

#38What about the author's work after his death?

It is nothing revolutionary in the world to publish unpublished work after the death of their author (for simplification terms author and artist shall be used interchangeably). Examples include posthumous releases of music by Michael Jackson, Queen or Amy Winehouse. 7 of Tupac's 11 platinum albums were released after his death, selling more than 75 million records.

Posthumous editions and realizations of unfinished works also come with controversial stories. While some artists directly say that after their death, their work will continue to live, others are silent about the future of their works and, by default, leave it to third parties to decide their fate after their death.

With regard to personal rights and copyright protection at the international level, Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 (published in the Slovak Republic as Decree of the Minister of Foreign Affairs No. 133/1980 Coll.) guarantees the protection of personal rights after death, at least until the expiry of the granted economic rights, which is for the duration of the author's life and fifty years after his or her death. But what if the will of the deceased does not translate into an explicit ban on publishing his art, which will prevent third parties such as their heirs or licensees from benefiting from this unpublished art? And who determines how the unspoken intent of the deceased artist is to be interpreted?

As copyright is in most cases not a public law but a private law discipline, it includes private autonomy which allows - within the limits of available national standards - the free conclusion of copyright and property contracts. Therefore, in addition to the licensing, lending or sale of these properties, another way of disposing of them should be to decide on their fate within the will. But what will happen to those whose fate the author or artist did not have time to decide?

In general, for each type of property right, unless the author has expressly included his desire in a legally binding will, heirs are free to use their inherited property rights at their own discretion. However, from the point of view of personal rights and the aspect of non-interference with the work, the use of excerpts, samples, or sketches, i.e., the work not intended for publication in this state, without accessories, without added "beat", without performing a mix or master performed with undoubtedly involves involuntary alterations to the artist's work with direct consent. The use of such an unfinished work after death for many artists necessarily influences their legacy.

Regarding the application and enforcement of moral rights, two models have been proposed a:

1. a) model of succession which, in the absence of an express will, gives the successor of the deceased full control over the object of the succession; and
2. b) model of trust which does not enable the heirs to ignore the intentions of the deceased, even if they have not been expressly expressed.

According to the model of trust, the intention of the deceased artist is "authoritative" at the time of his death. It is up to those who decide on the inherited property to respect and follow the intentions of the artist at the time of his death.

Therefore, such an expression of will would provide sufficient protection in countries such as Germany, which follow the model of trust, because the artist has expressed loud and clear what his intention is. Interestingly, the German Federal Court had to deal with a similar case, for example when changing the design for the passion play Oberammergauer, stating that “... the assessment will be based on the personal interests of the author after the death of the petitioners as his legal successors; whereas the possible own interests of the petitioners – meaning interests that are not related to the deceased and are not inherited - should not be taken into considering…".

In the essence, the German Federal Court preferred the interest of the deceased author to his heirs, although they have the work at their disposal as his legal successors. Regardless of the model used, the dilemma between economic loss and the pursuit of the artist's intent persists, as it is usually inherited by those who receive the posthumous edition and would most likely refrain from enforcing the rights of the deceased artist for personal reasons. As a result, the lack of expressed will in countries governed by the succession model would leave only few barriers that prevent these parties from using the author's works in a way that could damage the artist's legacy, for example by publishing a work that is below artistic caliber, bearing their name or goes in another ideological direction.