11 October 2008

Mistaken Federalism (Part III of ???)

[continued from 10 Oct]
One quick correction to a much more famous and eminent blogger: This is not the end of the controversy over Andre Norton's will. Dr Horadam could appeal this opinion from the Tennessee Court of Appeals to the Tennessee Supreme Court... and then, because it raises substantial issues of federal law, to the US Supreme Court. Conversely, absent an appeal there is still significant work to be done in the trial court. The one thing that one can say at the moment is that, until there is a different ruling, Dr Horadam can neither block publication of any of Andre Norton's works, nor authorize publication or other exploitation of any of Andre Norton's works. The effect of this ruling is that he owns only an interest in certain royalty streams, presumably limited to publication (although that issue was not tested).

In any event, I'm going to break down the opinion a bit farther, trying to extract the issues most relevant to authors and other creators of IP interests... whether deceased yet or not. One cannot emphasize enough that, as Mr Gaiman put it in greater detail (including links to sample language that will generally do the job in the US, even though it's not the way I would do it), y'all need a valid will. Do it. Now. And make certain that the person(s) you choose as executor know(s) how to ask for advice on managing the IP portions of the estate, and from whom!

The Court of Appeals disposed of point 1 pretty well. It did a much less satisfactory job on point 2: That there is an ambiguity in the will. Whether a written document is ambiguous is ordinarily a pure question of law. One should always be suspicious when an appellate opinion cites Black's Law Dictionary; the level of suspicion should increase geometrically with each additional citation. Bluntly, Black's Law Dictionary is a pretty worthless hunk of outdated, inelegantly-written opinions of what various legal terms "mean" — and that's a particular problem when the underlying question is whether something is ambiguous! Since the Court of Appeals cites Black's Law Dictionary three times, we should be only 1/8 as confident in its reasoning as we might otherwise be... and the Court's footnote 3 only reinforces that conclusion.

Some jurisdictions make no distinction between latent and patent ambiguities when 3 admitting parol evidence to identify, explain, or define the subject matter imperfectly described in a writing. See, e.g., Battle v. Wolfe, 283 S.W. 1073 (Tex. App. 1926) (noting express repudiation of the rule distinguishing patent and latent ambiguity if extrinsic evidence is necessary to identify subject matter); Cumberledge v. Brooks, 85 N.E. 197, 199 (Ill. 1908) (holding the admissibility of parol proof not dependent on distinction between patent and latent ambiguity); Armistead v. Armistead, 32 Ga. 597 (1861) (criticizing distinction as “wholly unphilosophical”).

Horadam, slip op. at 7. In this instance, the Supreme Court of Georgia had it right a century and a half ago: There is no philosophical — and, indeed, no real legal — distinction between the two; it is only a question of whether one characterizes outside sources used to try to resolve an ambiguity as "authority" or "evidence," which is a case-by-case determination.

Despite this weakness in the opinion, it does point out one preventive measure that holders of IP rights must take when creating an estate plan: Make certain that the will, trust, or transfer to a holding entity is excrutiatingly clear on what is being transferred and what is not, and is at minimum internally consistent. If possible, identify interests by a registration number and/or date of creation; identify the statutory source of the interests (e.g., the Copyright Act); identify the nature of the underlying work that creates the interest (e.g., unpublished manuscript, screenplay, sculpture); and, perhaps most important, keep the identifications up to date. The best way to do this is to include an appendix to the will that gets added to periodically, at least once each year, to include new works. The exact mechanism varies from state to state; in some states, you can merely refer to an authoritative index, in others you must formally add a codicil (amendment) to the will, in still others you can merely update an exhibit to the will without replacing the earlier versions.

Next time, the fun will really begin...