This Essay is an inquiry into the role of death in copyright law. I argue that the role of the author’s death in measuring copyright duration is intelligible as an indication of the way in which copyright law construes the formation of the right, and thus the juridical relation between author and work. Through the principle of independent creation, the originality doctrine posits an irretrievably personal link between author and work, and it is this link that accounts for the relevance of the author’s death in our conceptualization of copyright duration. In short, the theory of originality entails a theory of duration. By way of conclusion, I deploy this convergence of originality and duration, authorship and death, as a springboard to deepen our appreciation and to reevaluate fundamental aspects of the foundational opposition between Lord Mansfield and Justice Yates in the classic case of Millar v Taylor.
Drassinower, Abraham, Death in Copyright: Remarks on Duration (December 15, 2020). Boston University Law Review, volume 99, 2019.