Ray D. Madoff. Immortality and the Law: The Rising Power of the American Dead. New Haven: Yale University Press, 2010.
The characteristically American view of private property, supported by the tradition of common law, is that an individual can control their property, but not their body or reputation, after death. Boston College Law School professor Ray Madoff provides a guide to the development of American law about the rights of the dead, building on her previous work on estate and trust law. While academics have considerable evidence of the power of dead hands, surrounded by – and working in - eponymous institutions which provide an ongoing advertisement of the generosity of the dead, they have also seen the wishes of the dead overturned, perhaps most recently in the relocation of the Barnes Foundation collection.
Plainly written, this work charts the development of American property law in regard to achieving immortality, complete with the unsettling prospect of the success of cryonics, which would add a third category of “not really dead” to the previously binary concepts of life and death. Her discussion of the economic values of copyright and right of publicity, which is particularly relevant to this community, cautions against the chilling effect the current legislation has on creative expression, as it increasingly locks up archetypes, effectively removing them from artistic circulation.
Her strongest statement on the abuse of the notion of private property is that rights of publicity and copyright have become corporate assets, artificially extending the life of the individual creator to the benefit of others. “It is significant that the areas in which American law has grown most dramatically – dynasty trusts, charitable trusts, copyright, and rights of publicity – not only appeal to individuals’ desire to exert posthumous control but also appreciably benefit corporate interests. By using interests of the dead as a decoy, these entities have succeeded in enriching their own property interests.” (pp. 155-156)
Overall, a troubling work, particularly as it illustrates that the law reflects societal values in which increasing rights are granted to the dead without regard to the cost to the living.