True at First Light,the fourth posthumous publication of Ernest Hemingway’s writings, was released last week on the 100th anniversary of the author’s birth. This comes on the heels of Juneteenth, a posthumous novel assembled from notes and stories by Ralph Ellison released in June. Both books have sparked questions about the ethics of publishing an author’s unfinished works after he has died. Is there any legal action a writer can take while living to keep his unpublished works out of the public eye forever?
Copyright laws provide some defense, but they’re hardly airtight. A copyright gives a living author control over his original work, published or not, including exclusive rights to reproductions, distribution, and displays of the work. Anyone who violates a creator’s copyright can be sued by the copyright holder. In the United States, the copyright protection extends for 70 years following the creator’s death, with the right of enforcement falling to the creator’s estate or designated agent. So, you could stipulate in your will that you don’t want your works published, or you could leave the copyright to some person or organization with instructions not to publish them.
But those works would only be protected for 70 years before being released into the public domain (that is, before they can be reproduced freely by the public). Besides, there’s little to prevent your executor from publishing the works anyway. In theory, a suit could be brought against a copyright holder who published against an author’s wishes, if the author’s will explicitly stated that he didn’t want that to happen–and assuming, of course, that someone among the living would file the suit. So, if you really don’t want to your unpublished manuscripts to see the light of day, you need to destroy them before the bell tolls for you.
Then there’s the question of protecting your image and your name. Thanks to a principle called the right of publicity, a celebrity has some control over the use of his name and other representations of him. (Game show host Vanna White won a 1992 case concerning a futuristic robot modeled after her that was used in a commercial, and singer Tom Waits triumphed over Frito-Lay the same year after complaining that a voice-over in one of the company’s ads seemed to imitate his voice.) The extent of control varies from state to state, depending on where the use in question takes place. And while it usually applies only during a person’s lifetime, 10 states confer a post-mortem right to publicity, giving control to the deceased’s estate or heirs for up to 100 years after his death.
Explainer thanks Charles Scribner III, the editor in charge of Hemingway’s works; Yale Law School Professor James Boyle; and attorneys Michael S. Shapiro, Baila Celedonia,and Michael Katakis.
