In his will, Beastie Boy Adam “MCA” Yauch left instructions that “in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.” Wendy S. Goff looks at why that opens a legal can of worms:

In a sentence that referred to publicity rights, the words Yauch added introduced the matter of copyright. The two are very different legal animals.

Publicity rights refers to Yauch’s interest, while he lived and in some states after he died, in protecting his image and his name, which had value because he was a celebrity. Legally, they couldn’t be used in advertising without his permission (or that of his heirs). Someone who violated this right could be required to pay a fine for the value of the damages they caused, and turn over any profits they made as a result.

Contrast that right with copyright — the federal law that covers a literary, artistic, musical, or other creative work. Copyright owners have the right to control the use of their work and get paid for it. In the music industry, it covers not only the written composition (sheet music and lyrics), but also sound recordings. To make things more complicated still, the composer of the music and the lyricist are both considered authors.

Yauch and his heirs clearly control his publicity rights. But most of his music copyrights are likely shared with his bandmates and others; his estate can’t constrain what it doesn’t own. Music is especially hard to pin down:

When songs have been distributed to the public under certain conditions, the owner of the composer’s copyright cannot prevent other artists from “sampling” or making “covers” of the song.

The mandatory license right forces the owner to license the rights to others who may make their own recordings and sell them for a profit. (Whether Monster Beverage exceeded the rights afforded by a mandatory compulsory license, and therefore infringed on the Beastie Boys’ copyrights is the subject of a lawsuit.) Therefore Yauch’s heirs may be forced to license his work, whether or not the terms of his will allow them to derive any profit from it.

Philosophically, it’s easy to see what Yauch was going for. Practically, this was a situation that needed more-nuanced legalese to avoid unintended consequences.

Link via Jen Pollack Bianco.