Should unfinished posthumous novels be published?

[elcreative]

Entitlements, duty to humanity, crime against humanity... now that is really going over the top... isn't it a crime to say your rights are more important than someone else's rights?

[astrangerhere]

Originally Posted by khalleron

And I heartily disagree - the dead have no rights because they're, well, dead.

People contest wills all the time. That's why we have courts, to uphold justice, not some dictatorship from the grave.

<snip>

1 - The dead DO have very real tangible rights in their property - the right to divest it how they saw fit. Its those self-same rights that bickering heirs go to court trying to grab hold of.

2 - Courts do not uphold justice and they never have. They uphold the law. And often the law, especially that of the estate courts, is not just or fair. It is just the law. I have no disillusions about my profession.

3 - I don't think the dead are more important than the living, but an author who makes his wishes clear while he is alive is not yet dead. He has a right to have this wishes respected with respect to his personal property, which is what any work he creates is until he decides to make it public is - personal property.

[khalleron]

And yet courts overturn wills all the time, not always because the heirs are greedy, as seems to be the opinion here, but because often the person making the will is an ass. Ass-ery is not unique to heirs.

What's the greater good here? I think that's the real question. Steve's a professional writer, he seems to think that absolute control beyond the grave is his greater good.

How would burning Kafka's works have benefited anyone? It may have been his wish, but it couldn't have been to his benefit, because he's dead.

I'm all for respecting the wishes of the departed as long as those wishes don't harm the living, but I see the loss of art as a very great harm.

[astrangerhere]

Originally Posted by khalleron

And yet courts overturn wills all the time, not always because the heirs are greedy, as seems to be the opinion here, but because often the person making the will is an ass. Ass-ery is not unique to heirs.

What's the greater good here? I think that's the real question. Steve's a professional writer, he seems to think that absolute control beyond the grave is his greater good.

How would burning Kafka's works have benefited anyone? It may have been his wish, but it couldn't have been to his benefit, because he's dead.

I'm all for respecting the wishes of the departed as long as those wishes don't harm the living, but I see the loss of art as a very great harm.

We overturn wills because the form was wrong. Or because the person writing it was not mentally capable or was unreasonably coerced. Or because they left everything to Fluffy the cat, which the law doesn't allow. Those are actually some of the only reasons.

Its not your art to lose. Its not anyone's art until that author is willing to expose it. I'm an attorney, and I can't really think outside of that schema anymore. I see rights that the author has to choose to divest how he wishes. I don't see this view that some are taking that as soon as pen has gone to paper that its art for all to consume even if the author did not wish it. Its a self-centered point of view to my mind. I am still waiting for someone here to convince me otherwise.

[GlennD]

Originally Posted by astrangerhere

Its not your art to lose. Its not anyone's art until that author is willing to expose it. I'm an attorney, and I can't really think outside of that schema anymore. I see rights that the author has to choose to divest how he wishes. I don't see this view that some are taking that as soon as pen has gone to paper that its art for all to consume even if the author did not wish it. Its a self-centered point of view to my mind. I am still waiting for someone here to convince me otherwise.

So legally speaking, if I find a novel manuscript in my grandfather's things, and he never even told any of us that he wrote it, do I have the legal right to publish it? Or maybe his diary - a document that was obviously intended to be private? (clearly ethics and laws are two different questions)

[OtterBooks]

I shudder at the idea of Mozart's unfinished Requiem having been locked away, depriving civilization of one of the most beautiful things ever devised by human imagination.

[elcreative]

Said manuscript is part of the deceased's estate... if not specifically mentioned with required actions then you are both legally and morally free to do with it as you wish, likewise the diary. If specifically mentioned with an instruction to destroy either or both then comes the difficult choice... ignore the will (legally and morally dodgy), challenge it in court (put the decision on someone else's shoulders but legally fine...) or carry out the final instructions...

Originally Posted by GlennD

So legally speaking, if I find a novel manuscript in my grandfather's things, and he never even told any of us that he wrote it, do I have the legal right to publish it? Or maybe his diary - a document that was obviously intended to be private? (clearly ethics and laws are two different questions)

[Andrew H.]

Originally Posted by khalleron

And yet courts overturn wills all the time, not always because the heirs are greedy, as seems to be the opinion here, but because often the person making the will is an ass. Ass-ery is not unique to heirs.

Courts do not overturn wills because the person making the will is an ass. Unless the particular manner in which the person makes the will is contrary to law, testators are allowed to be asses. The primary goal of the court in construing a will is to carry out the will of the testator. Even if the testator is an ass.

What's the greater good here? I think that's the real question. Steve's a professional writer, he seems to think that absolute control beyond the grave is his greater good.

No, that's not the real question at all. The real question is what does the will say. Courts don't ignore wills to carry out what they see as the greater good.

How would burning Kafka's works have benefited anyone? It may have been his wish, but it couldn't have been to his benefit, because he's dead.

I'm all for respecting the wishes of the departed as long as those wishes don't harm the living, but I see the loss of art as a very great harm.

It wouldn't have benefited anyone; I'm glad that his works weren't destroyed.

Note that Kafka just asked Brod to destroy his unpublished works; it wasn't something in a will.

[OtterBooks]

Originally Posted by Andrew H.

testators are allowed to be asses.

I laughed at that for the most immature reasons possible.

[Giggleton]

Originally Posted by kennyc

You really need to get back on your medication giggles.

Do you realize that your ideas about reality (copyright, individuals, whether or not the creator has any rights to their creation) are just that, IDEAS. They hold the same weight as my ideas or anyone else's. There is NOTHING in this universe that is objective. EVERYTHING follows from that.

I mean just look at the threads title, the second word is ambiguous and any serious discussion of the subject must begin there. Unless you wish to just toss out any old ideas back and forth with each other.

Posthumous is tough to wrap your head around too, what is death anyway?

novels? published? All these words only take their meaning from those who give them meaning.

Is a single word a novel? Is this post published?

Here's the news, IT'S ALL GOOD

If you want to read something read it.

If you don't think I should be able to read an "unfinished posthumous novel" Well, I must ask you what medication you are on that makes you think you have any rights in telling me what I can and cannot read.

[astrangerhere]

Originally Posted by GlennD

So legally speaking, if I find a novel manuscript in my grandfather's things, and he never even told any of us that he wrote it, do I have the legal right to publish it? Or maybe his diary - a document that was obviously intended to be private? (clearly ethics and laws are two different questions)

You have all rights to do with it what you wish, provided you were the one who inherited his property AND provided he did not leave instructions to the contrary about his personal papers. Where you would see a dispute, legally, is if say you and your hypothetical brother were left all his property together. You sell the book and your brother then sues you for his half of the profits.

The issue we were talking would have been if your grandfather left instructions for his executor or attorney to destroy all his papers on his death. Legally speaking, the attorney or executor has no right to turn around and publish rather than destroy. And even if he does so, he has no rights to the profit. Whoever inherited his property would. But it would spawn at least 2 not pleasant legal battles, i'd imagine.

The diary, again, unless there were instructions to the contrary are also yours legally to do with what you will. But as you very deftly pointed out, the ethics issue has nothing to do with the legal issue.

[crich70]

How would that relate to things like fan fictions? I know that living authors sometimes ask people not to post fictions based on their canon writings (Ann Rice is an example if I recall) but could a descendant of a known author take someone to court for posting a fan fiction based on a PD book?
I know some book series for example (like L. Frank Baum's Oz books) were continued after the author's death by others (though they worked through the publisher) but say someone wrote a work using characters from a novel like Dracula for example. Could the author's heirs (if any still live) or a publisher do anything legally to stop such a book coming out? Either one available for free or for sale? I know it's not quite the same thing as an unpublished work by the author, but it would seem to me to be something similar in some ways.

Originally Posted by astrangerhere

You have all rights to do with it what you wish, provided you were the one who inherited his property AND provided he did not leave instructions to the contrary about his personal papers. Where you would see a dispute, legally, is if say you and your hypothetical brother were left all his property together. You sell the book and your brother then sues you for his half of the profits.

The issue we were talking would have been if your grandfather left instructions for his executor or attorney to destroy all his papers on his death. Legally speaking, the attorney or executor has no right to turn around and publish rather than destroy. And even if he does so, he has no rights to the profit. Whoever inherited his property would. But it would spawn at least 2 not pleasant legal battles, i'd imagine.

The diary, again, unless there were instructions to the contrary are also yours legally to do with what you will. But as you very deftly pointed out, the ethics issue has nothing to do with the legal issue.

[astrangerhere]

Originally Posted by crich70

How would that relate to things like fan fictions? I know that living authors sometimes ask people not to post fictions based on their canon writings (Ann Rice is an example if I recall) but could a descendant of a known author take someone to court for posting a fan fiction based on a PD book?
I know some book series for example (like L. Frank Baum's Oz books) were continued after the author's death by others (though they worked through the publisher) but say someone wrote a work using characters from a novel like Dracula for example. Could the author's heirs (if any still live) or a publisher do anything legally to stop such a book coming out? Either one available for free or for sale? I know it's not quite the same thing as an unpublished work by the author, but it would seem to me to be something similar in some ways.

Fanfiction in and of itself is a very odd animal. Alot of different things come into play when determining whether or not any fanfiction is legal, leaving aside the issue of heirs. But for things like Baum or Stoker, those works are no longer protected by copyright and therefore those characters are available for all to freely use (see the Sense and Sensibilty and Sea Monsters and other books like that for examples).

But lets take for example something that actually happened - in the 90s, Fox Broadcasting tried to stop the posting of X-Files related fanfiction. They were sending C&Ds on the basis of copyright. But because fanfic authors in no way make money off their fic, the attempt failed. But as a result, you always see a standard disclaimer on fanfic now ("the show is property of, etc etc").

As to an heirs rights to "publish" via posting that sort of work posthumously, it depends. If there were instructions about what should be done with all papers, documents etc., the courts would view drafts on a computer as documents. But as you cannot profit from fanfic, this really would not be likely to come up. Now if you found a draft of a great Dracula novel re-write and went shopping that around to publishers, you'd be in violation of a term in the will to destroy the papers. If you made a penny of of it, you'd likely find yourself in court and having to divide profits with heirs or fight for your ability to sell it at all.

[crich70]

Interesting. I imagine then that books that put characters like Sherlock Holmes together with Dracula or Mr. Hyde are only possible then because the estate of A.C. Doyle allows such works to be published. Or maybe due to the fact the books are PD some leeway exists.Either way it does sound like a legal quagmire best avoided if possible.

Originally Posted by astrangerhere

Fanfiction in and of itself is a very odd animal. Alot of different things come into play when determining whether or not any fanfiction is legal, leaving aside the issue of heirs. But for things like Baum or Stoker, those works are no longer protected by copyright and therefore those characters are available for all to freely use (see the Sense and Sensibilty and Sea Monsters and other books like that for examples).

But lets take for example something that actually happened - in the 90s, Fox Broadcasting tried to stop the posting of X-Files related fanfiction. They were sending C&Ds on the basis of copyright. But because fanfic authors in no way make money off their fic, the attempt failed. But as a result, you always see a standard disclaimer on fanfic now ("the show is property of, etc etc").

As to an heirs rights to "publish" via posting that sort of work posthumously, it depends. If there were instructions about what should be done with all papers, documents etc., the courts would view drafts on a computer as documents. But as you cannot profit from fanfic, this really would not be likely to come up. Now if you found a draft of a great Dracula novel re-write and went shopping that around to publishers, you'd be in violation of a term in the will to destroy the papers. If you made a penny of of it, you'd likely find yourself in court and having to divide profits with heirs or fight for your ability to sell it at all.

[carld]

Originally Posted by crich70

Interesting. I imagine then that books that put characters like Sherlock Holmes together with Dracula or Mr. Hyde are only possible then because the estate of A.C. Doyle allows such works to be published. Or maybe due to the fact the books are PD some leeway exists.Either way it does sound like a legal quagmire best avoided if possible.

There's no legal quagmire in that scenario. All those stories and characters are in the public domain, and anyone is free to use them. Doyle's estate has no say-so in the matter.