As interesting as the dispute between the Beastie Boys and GoldieBlox already is, there is another aspect to this dispute that makes it even more fascinating. In the public letter that GoldieBlox issued shortly after filing their suit, GoldieBlox apologized to the Beastie Boys for its use of Girls in its commercial becuase this use defied Adam Yauch’s final wishes set out in his will.

One of the three members of Beastie Boys, Yauch died in May 2012, and his will was filed with the New York Surrogate Court in Manhattan in August 2012, making it a public document. Like many other celebrities, Yauch’s will was drafted to prohibit his name or image from being used for advertising purposes. Sometime after his will was drafted though, Yauch added the following words in his own handwriting to the prohibition on his name or image being used in advertising:

“or any music or any artistic property created by me”

From a legal perspective this addition is problematic, and may not help accomplish what Yauch likely intended. For example, the additional words in his own handwriting may not be valid as they were added after the will was already signed in the appropriate fashion (never add words to your will after it is signed! Make a new will if you want changes!). There could also be a problem from a copyright law perspective.

If Yauch’s will was interpreted under Canadian law, “artistic property” that he created that would be protected by copyright law, would have a term of protection covering his lifetime, to the end of the year that he died, and then for another fifty years after that. After fifty years, his “artistic property” will enter the public domain. Before entering the public domain, interests in copyright can be passed from the owners thereof to their heirs by will or intestate succession. Canada’s Copyright Act further states that where the author of a work is the first owner of the copyright therein, no matter what agreements they made during their lifetime, every interest they granted or assigned in their copyright will revert back to the author’s estate, and will devolve on their legal representatives twenty-five years after the death of the author. So, even if Yauch had granted all of his interests in his copyrights during his lifetime, under Canadian law, his interest would revert back to his estate twenty-five years after his death, meaning that his will would then control the copyright interest (in Yauch’s case, purportedly prohibiting a grant for advertising purposes).

Even though Yauch’s will can effectively deal with his copyright interests, the problems with his handwritten insertion are still not solved. Assuming that his handwritten insertion is not invalidated, the trustee(s) of Yauch’s estate will have to determine what is meant by the words “created by me”. Are these words meant to limit the advertising prohibition to creations that Yauch authored solely, or are they also meant to include creations that Yauch helped to author jointly with others (i.e. a song like Girls, authored by the Beastie Boys and Rick Rubin)?

If “created by me” is interpreted broadly to include works that Yauch authored jointly with others, Yauch’s will can only prevent the trustee(s) of his estate from allowing Beastie Boys’ songs from being used in advertising. It cannot prevent the other joint authors from granting their interests in the work of joint authorship, so long as any profits earned are equally paid to each joint author. This means that the surviving Beastie Boys could settle the litigation with GoldieBlox by reaching an agreement that licenses Girls to GoldieBlox for commercial use, despite the restriction in Yauch’s will, so long as his share of the profits are paid to his estate. This of course depends on any agreement that the Beastie Boys may or may not have made among each other with respect to their joint copyright interests in the band’s music.

As much as Yauch’s will won’t play a part in the litigation with GoldieBlox (even if Yauch’s handwritten insertion is valid, as a finding of fair use would prevail), this part of the story is but another example of the importance of a well drafted estate plan that takes into account every type of property that will form part of an estate, in order to effectively carry out the final wishes of the deceased.