By: Cynthia Huynh

The release of posthumous albums is nothing new; Tupac, The Notorious B.I.G., and many more had music released after their deaths. But some artists believe that their unreleased work should be kept private after their deaths. For example, Anderson .Paak expressed this position when he showed off his tattoo which says “[w]hen I’m gone, please don’t release any posthumous albums or songs with my name attached. Those were just demos and never intended to be heard by the public.” Anderson .Paak is not the only artist who shares this position, showing that an artist’s unfinished music may reflect something that they do not intend to release to the public.

Modern Posthumous Music

In recent years, many famous rappers have unexpectedly passed away at a young age due to drug use and violence, including Juice WRLD (age 21), XXXTentacion (age 20), Pop Smoke (age 20), Lil Peep (age 21), and Mac Miller (age 26). Each left behind incomplete or unreleased songs, some of which were released as enormously popular posthumous albums. Historically, posthumous music has raked in the big bucks for artists’ estates and record labels. When an artist dies, there is often a significant increase in demand for the artists’ released and yet to be released music. For example, after Pop Smoke’s death, his label released two albums and a mixtape. Both albums were number one on the Billboard 200 and the mixtape peaked at number seven. Notably, “Pop Smoke’s only non-posthumous release to reach the charts was a mixtape that peaked at 105 on Billboard, which only occurred after the artist passed away, seven months after its release.”

Gustav Ahr, known as Lil Peep, died of a fentanyl overdose in 2017, just two years after the SoundCloud rapper released his debut hit “Star Shopping.” Before his death, Lil Peep and rapper iLoveMakonnen were in the midst of recording an album together. The album was never completed but included an unfinished version of a song called “Sunlight on Your Skin.” Clips of the song were posted on YouTube, where it gained attraction from fans and other artists. After Lil Peep’s death, another rapper, XXXTentacion (X), expressed his love for the song and his desire to be included as a feature. X recorded his feature on the song, but also passed away before production was finalized. The song was then released after the death of both Lil Peep and X under the name “Falling Down.”

For some, “Falling Down” pays tribute to Lil Peep and X. But the two artists never collaborated during their lives and many Lil Peep fans condemn the song for being a product that Lil Peep never would have approved. While Lil Peep was alive, he “explicitly rejected X for his abuse of women. He spent time and money getting X’s songs removed from his Spotify playlist and wouldn’t have co-signed that song,” explained one of Lil Peep’s collaborators, Fish Narc. Even Lil Peep’s mother attempted to prevent the release of “Falling Down,” saying that Lil Peep had “sworn off any association with XXXTentacion” and had expressed how proud he was of the original song. With this, one might wonder if there are any laws that protect an artist’s work from being altered after their death. One treaty, The Berne Convention, attempts to provide such protections.

The Berne Convention

The issue of moral rights in art was addressed in 1886 through an international agreement called the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”). The Berne Convention includes the protection of works by musicians and gives them the right to control how their works are used, by whom, and on what terms. Article 6bis(1) of the Berne Convention grants artists moral rights such as the right of integrity and allows artists “to object to any distortion or modification of a work, or other derogatory action in relation to a work, which would be prejudicial to his honor or reputation.” For example, imagine a photographer carries a religious faith that prohibits the use of tobacco. The photographer sells one of their images and its related copyright to an advertising agency which uses the image in a campaign for a cigarette company. In a country where copyright protects moral rights, the photographer may be able to protect their work from such distortion if the change offends their honor or reputation.

The United States became a party to the Berne Convention in 1989, but has not ratified the treaty, so it is non-binding until Congress statutorily enacts legislation that makes the non-self-executing Berne Convention enforceable. This could be accomplished by amending current federal statutes to expand the kinds of art that are protected like the Visual Artists Rights Act (VARA) that provides protections for visual, but not auditory, art.

The Visual Artists Rights Act

In the United States, the Visual Artists Rights Act (17 U.S.C. § 106A), protects moral rights, but only for works of visual art. Because music is audible art rather than visual art, musicians who have passed away are not afforded moral rights such as the right of integrity for their unreleased music. Should Congress wish to strengthen the moral rights framework, possible legislative changes include amendments to VARA and the Lanham Act to better protect artists’ interests and expand recourse for removal or alteration of copyright management information in section 1202 of title 17 which prevents false information about the name of an author, the name of the work, and more. But the U.S. Copyright Office stated in a report that it believes expanding VARA to encompass musical works and sound recordings contradicts the purpose of VARA as explained in the legislative history. First, musical works and sound recordings are made available to the public in mass-produced editions, not the single or limited editions that make certain works of visual art so suitable for moral rights protection. Second, . . . musical works created to accompany audio-visual works tend to be made-for-hire. Works-made-for-hire are explicitly excluded from VARA even if they are original visual art works. Third, musical works and sound recordings can benefit from contractual protections for attribution and integrity interests not available to visual artists, who typically work without such contracts.

Conclusion

It is crucial that lawmakers carefully consider and balance the tradeoffs between protecting the rights of musical artists to not have their work distorted versus overregulating an issue that is not as vulnerable to distortion as singular creations of visual art. The struggle for control over an artist’s unreleased music after their death has led to many lawsuits, which puts pressure on Congress to consider expanding copyright law to include moral rights in the United States.

#WJLTA #copyrightlaw. #moralrightsinmusic. #legalethics.