Creative life after death – or yes, you can control spinoffs from the grave

Michael Crichton, the creator of “ER” and writer of “Jurassic Park,” died in 2008. Why is his estate now suing Warner Bros.?

It turns out that when Crichton agreed to develop the ER series, he reserved the right to approve any sequels – or not. That right did not die with him.

While Warner is currently developing a new medical drama called “The Pitt,” Crichton's estate claims that the new series is simply a reboot of “ER.” Although the new series has some similarities, including some of the same actors, Warner denies all allegations.

The dispute is the latest in a series of high-profile court cases brought to protect the estate of a now-deceased artist. And yes, even after death, artists can retain some control over their work.

As law professors who teach trusts and estates, we follow these cases so we can teach our students how authors, artists, and other creative people can preserve their legacies.

We are particularly interested in three situations involving celebrities because they show how complicated the protection of artists is – especially in the age of artificial intelligence.

Contracts provide permanent control

When a creator sells a film or television project, the buyer typically wants to acquire rights to produce sequels, remakes and spinoffs linked to the original intellectual property. Selling so-called derivative rights can allow the creator to maximize the sale price and the buyer to take full advantage of the creative idea.

However, Crichton had enough influence in the industry to negotiate more favorable contracts for some of his most famous projects. In 1994, for example, he signed a deal with Warner Bros. that led to the production of the NBC medical drama ER, which ran for 331 episodes and grossed over $3.5 billion.

Because of Crichton's reputation, he obtained a rarely granted freeze clause that gave Warner Bros. his consent to produce any “sequels, remakes, spin-offs and/or other derivative works.”

That frozen rights agreement survived his death, as contractual rights generally do. On August 27, 2024, after Warner Bros. recently announced production of a new medical drama starring ER's original lead Noah Wyle, Crichton's widow filed a lawsuit invoking the frozen rights clause to challenge The Pitt as an unauthorized reboot.

Copyright protection remains even after death

A copyright grants the creator of a work exclusive rights for the lifetime of the author plus 70 additional years. After the author's death, the copyright can be claimed by his or her estate.

For example, the estate of Isaac Hayes recently objected to Donald Trump's presidential campaign's use of the late songwriter's song “Hold On, I'm Comin'.” According to a federal lawsuit filed on August 21, 2024, the Trump campaign has “unlawfully performed” the song at least 133 times since 2020, including at the 2024 Republican National Convention.

Hayes' estate demanded that Trump stop using the song and is seeking $3 million in royalties for past performances. On September 4, the judge ruled in favor of the estate in a preliminary ruling. The Hayes dispute shows how important copyright protection is – and also how important music is in the 2024 presidential campaign, because Hayes' estate was not the only one to object to Trump's use of his music.

Another recent case involved “Vultures 1,” a new collaborative studio album by Ye – formerly known as Kanye West – and Ty Dolla Sign. According to Donna Summer's estate, “Vultures 1” contained an “unauthorized interpolation” of Summer's 1977 hit “I Feel Love.” Summer died in 2012.

In a lawsuit filed in February 2024, Summers' estate said it had rejected a request to license the song because it “did not want any association with West's controversial history.”

Despite this rejection, West and Dolla Sign “re-recorded the most important and memorable parts of Summer's iconic song almost word for word, used it as the chorus for their own song, and released it despite knowing that they had tried in vain to obtain legal permission from the rightful owners and had no right to do so,” the lawsuit states.

When the parties reached an agreement in June 2024, Summers' estate attorney publicly stated that the agreement did not include permission to license the song.

Personal rights can protect an artist’s legacy

The right of privacy allows people to prevent the commercial use of their identity, including their name and likeness, without their consent. About 20 states protect this right even after death. Tennessee just expanded its protections with the so-called ELVIS law to prevent the unauthorized use of a person's voice and AI applications. It is the first state to do so.

In early 2024, the estate of comedian George Carlin sued the creators of the podcast “Dudesy” for violating his privacy rights by releasing an AI-generated episode titled “George Carlin Resurrected.”

Carlin has been dead for more than 15 years. A deepfake image of Carlin was used on social media to promote an hour-long video titled “George Carlin: I'm Glad I'm Dead (2024).” According to the complaint, the video “used an AI-generated soundalike of George Carlin to read and perform an AI-generated script written in Carlin's humor style.”

The estate reached a settlement in April 2024 that required the podcasters to “permanently remove the video from the internet” and stop using Carlin's identity without the estate's consent.

Another recent case shows how estate planning can play a critical role in how beneficiaries use their moral rights after the celebrity's death. When legendary recording artist Little Richard died in 2020, he gave valuable intellectual property rights to nine people in his will in a special clause that required them to “cooperate among themselves… to reach an agreement” regarding his moral rights after his death. Once they had a plan in place, any beneficiary who disrupted the plan “forfeited” their right to any money from the plan.

Little Richard's brother Peyton Penniman wrote a letter to the buyer who had agreed to purchase Little Richard's publishing rights, in which Peyton implied that the estate was being “robbed.” The next day, the buyer, who had tentatively agreed on a purchase price, backed out of the deal. Earlier this month, a Tennessee court ruled that Peyton's actions had damaged the estate and he had therefore forfeited his rights.

Who owns the copyright after a deceased celebrity, or who stands to profit from that celebrity's images, impacts their legacy, but it also means that those individuals may be able to control what the rest of us see and hear, even from the grave.

As AI empowers each of us to create content, we can learn important lessons about what we can – and cannot – do when it comes to nurturing our own legacy.