Originally posted by the ABA’s Section of Intellectual Property’s LSAG blog.
The list of musicians who have died before they reach the age of 30 is strikingly long. [1] Not to mention those who didn’t even make it past 27; such as Kurt Cobain, Amy Winehouse, and Jimi Hendrix to name a few. [2]
Have you ever considered the impact an early death brings to an artist’s copyright ownership? A basic understanding of copyright law reveals that the shortened lifespan of an artist directly correlates to a shortened term of copyright ownership. The shorter the life, the shorter the copyright term. Current U.S. copyright law provides for the ownership term of a copyright to last from the time the author dies, plus an additional 70 years. [3]
The legal battles following the June 2009 death of Michael Jackson are shedding some light onto the hard reality that the early death of an artist negatively impacts the value of their copyrights. [4] Just ask Arthur Erk, the certified public accountant serving as an expert witness for Katherine Jackson’s wrongful death lawsuit which is currently on trial in Los Angeles. [5] Erk, who specializes in entertainment-related finances, is providing the jurors with insight into a method of calculating the future earnings capacity of Michael Jackson. [6] The “King of Pop” died at the age of 50, which Erk compared to the “average male recording” lifespan of 75 years. [7] Erk claims Michael Jackson loses 25 years of royalties income over the years to come and that those losses should be considered in an award amount. [8]
If the jury agrees, the Michael Jackson estate could have much to gain, leaving AEG Live with much to pay. On the other hand, the Jackson estate could be left without any recourse following the early death of the copyright creator. When legal fault is established for an artist’s death, I think it’s logical to try and calculate their potential future earnings. At one time, they would have been able to monopolize a work for any number of additional years, if only they had been alive. But for the actions of another party, that artist’s royalties income would have continued for a longer period of time.
Do you think it is a fair economic analysis to allow for the consideration of lost royalties due to the premature death of an artist?
You can follow along with the latest live tweeting straight from the courtroom at the ABC 7 Los Angeles Court News twitter account (@ABC7courts). We’ll have to wait and see whether the jury incorporates the shortened copyright term argument into their economic considerations.
Footnotes
1. “Dead Too Soon: Musicians Who Died Before Age 30.”http://music.yahoo.com/blogs/yradish/dead-too-soon-musicians-who-died-before-age-30.html.
2. “The 27 Club: 15 Other Musicians Who Died At Age 27.” Buzzfeed.http://www.buzzfeed.com/daves4/15-other-musicians-who-died-at-age-27.
3. 17 U.S.C. § 302.
4. “Expert: Jackson would have earned $1B on comeback.” The Associated Press, via CBS 8 San Diego. http://www.cbs8.com/story/22847281/expert-jackson-would-have-earned-1b-on-comeback.
5. Id.
6. http://twitter.com/ABC7Courts/status/355478176799010819
7. http://twitter.com/ABC7Courts/status/356988766394662913
8. Id.