A Copyright Right of Publicity

This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a “transformative use” of the publicity-rights holder’s identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging in speech about her own depiction. This Article offers novel contributions to the literature on copyright overreach and: (1) identifies a legal asymmetry produced in the interplay of publicity rights, copyright law, and the First Amendment; (2) examines the burdens on constitutionally protected speech, autonomy, and liberty interests of publicity-rights holders when copyright law prevents or constrains use of their own depiction; and (3) outlines a framework for recognizing a “copyright right of publicity” to exempt the publicity-rights holder’s use from copyright infringement liability. Notably, this Article contributes uniquely to the literature by revealing new insights gained from an exclusive first-hand perspective of an internationally recognized celebrity whose persona was prominently depicted without prior notice or consent in a wide-release feature film

Inheritance Forgery

Many venerable norms in inheritance law were designed to prevent forgery. Most prominently, since 1837, the Wills Act has required testators to express their last wishes in a signed and witnessed writing. Likewise, the court-supervised probate process helped ensure that a donative instrument was genuine and that assets passed to their rightful owners. But in the mid-twentieth century, concern about forgery waned. Based in part on the perception that counterfeit estate plans are rare, several states relaxed the Wills Act and authorized new formalities for notarized and even digital wills. In addition, lawmakers encouraged owners to bypass probate altogether by transmitting wealth through devices such as life insurance and transfer-on-death deeds. This Article offers a fresh look at inheritance-related forgery. Cutting against the conventional wisdom, it discovers that counterfeit donative instruments are a serious problem. Using reported cases, empirical research, grand jury investigations, and media stories, it reveals that courts routinely adjudicate credible claims that wills, deeds, and life insurance beneficiary designations are illegitimate. The Article then argues that the persistence of inheritance-related forgeries casts doubt on the wisdom of some recent innovations, including statutes that permit notarized and electronic wills. The Article also challenges well-established inheritance law norms, including the litigation presumptions in will-forgery contests, the widespread practice of rubber-stamping deeds, and the delegation of responsibility for authenticating a nonprobate transfer to private companies. Finally, the Article outlines reforms to modernize succession while remaining sensitive to the risks of forgery

Trust Term Extension

Over the last thirty years, most jurisdictions in the United States have repealed or abrogated the Rule Against Perpetuities, which prohibits perpetual donor control over property. This, in turn, has led estate planning practitioners to consider whether a trust created to comply with the Rule could, after the Rule’s repeal, be extended in perpetuity to provide for future generations of the settlor’s descendants upon petition of the trustee. Trust term extension in this context implicates fundamental questions about the purpose of a trust: For whose benefit—the beneficiaries’, the settlor’s, or the trustee/fiduciary’s—does the trust exist? This Article argues that the purpose of a private donative trust is to benefit beneficiaries selected by the settlor and that perpetual trust conversions are inconsistent with this purpose because they impair the interests of existing beneficiaries by converting remainder interests into less valuable life interests. Financial institutions serving as corporate fiduciaries, however, would further their own pecuniary interests by seeking perpetual trust conversions that extend the duration of commissions charged to the trust for performing administrative and managerial services. The possibility of trust term extension, therefore, not only implicates problems associated with dead hand control of property, but it also creates the potential for tension between corporate trustees and beneficiaries selected by the settlor. This Article, the first to examine the topic of trust term extension critically, argues that courts should reject trustee-proposed perpetual trust conversions for at least two reasons. First, modification should not be granted for the benefit of the fiduciary, particularly at a beneficiary’s expense. Second, an important recent trend in trust law has sought to favor the rights of living beneficiaries over a settlor’s right to exercise dead hand control over trust property, so evidence of what the settlor would have wanted but for the Rule should therefore not override vested beneficial interests

Inheritance Crimes

The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust— mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges. But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized financial exploitation of an elder, which includes obtaining assets through undue influence. Likewise, prosecutors are bringing theft charges against people who accept transfers from mentally diminished owners. Finally, legislatures are experimenting with abuser statutes that extend the slayer doctrine by barring anyone from receiving property from the estate of a senior citizen whom they mistreated. This Article evaluates the benefits and costs of this trend. It explains that these new sanctions deter elder abuse: wrongdoing that is rampant, pernicious, and underreported. Nevertheless, this Article exposes the dangers of criminalizing this unique area of law. First, criminal undue influence and the abuser doctrine may be unconstitutional in some situations. Second, inheritance crimes suffer from the flaws that make probate litigation so unreliable. Third, because inheritance law and criminal law have been traditionally understood as distinct, jurisdictions have not yet figured out how to gracefully merge them. Finally, this Article builds on these insights to argue that states should abolish criminal undue influence, harmonize civil and criminal rules, and create exceptions to abuser laws

The Future of Testamentary Capacity

Recently, the #FreeBritney saga cast a harsh spotlight on state guardianship systems. Yet despite their serious flaws, guardianship regimes have benefited from waves of reform. Indeed, since the 1970s, most jurisdictions have taken steps to protect the autonomy of people with cognitive, intellectual, or developmental disabilities (CIDD). Likewise, lawmakers are currently experimenting with supported decision-making (SDM): an alternative to guardianship designed to help individuals with CIDD make their own choices. These changes are no panacea, but they have modernized a field that once summarily denied “idiots” and “lunatics” power over their affairs. However, in a related context, the legal system’s treatment of individuals with CIDD remains rooted in the past. Since the sixteenth century, judges have voided wills executed by owners who lack testamentary capacity. This Article reveals that this notoriously problematic rule has resisted the progressive forces that have swept through guardianship law. The Article then offers fresh insight into how parties litigate testamentary capacity claims by reporting the results of a study of 3,449 estates from California. Finally, the Article analyzes several unsettled doctrinal issues, such as whether testators have due process rights to participate in adjudications of their own competence, the relationship between SDM and will-making, and the appropriate capacity test for nonprobate transfers

Wills for Everyone: Helping Individuals Opt Out of Intestacy

Testamentary freedom, the guiding principle of American in-heritance law, grants individuals broad power to control the disposition of property at death. Most individuals, however, allow testamentary freedom to lapse because they never execute a will. Empirical research reveals that most Americans need and want a will because they cannot identify their intestate heirs, but nevertheless die intestate. The high rate of unintended intestacy is a longstanding, pernicious problem that undermines testamentary freedom, disrupts the expectation of intended beneficiaries, and disproportionately affects nontraditional families and smaller estates. This Article challenges the traditional assumption that most individuals lack a will because they instinctively avoid or postpone decisions regarding death. The widespread use of nontestamentary transfers, such as pay-able-on-death accounts and life insurance, prove that Americans are willing to plan for the succession of property at death provided the process is sufficiently accessible, simple, and quick. By contrast, most lay individuals likely perceive the formality laden will-making process as obscure, complex, burdensome, and expensive. This Article proposes simplifying the testamentary process by attaching an optional form will to state individual income tax returns. This “testamentary schedule” would improve the will-making process by rendering it simple, widely accessible, easily amend-able, and less susceptible to tampering or misplacement