Posthumous art, defined as works created from an artist’s original molds, negatives or plans after an artist’s death, has always been subject to legal and ethical debate. Now, the debate has been reignited by artificial intelligence (“AI”), which generates new content in an artist’s style and may replicate an artist’s voice, image and likeness. The discussion of posthumous art is relevant to all genres and artists, from Beethoven to Tupac and Picasso to Carlin.

In their 2020 book, Posthumous Art, Law, and the Art Market: The Afterlife of Art, Professor Peter Karol, a legal expert in intellectual property law, and Doctor Sharon Hecker, an internationally recognized art historian, explore the nuances of the creation of posthumous art. For instance, the mere classification of posthumous art as ‘original’ or ‘authentic’ is subject to debate; although some may label these works as mere copies, others argue they are continuations of the artist’s work. Hecker has previously noted that posthumous art may be created according to detailed instructions left by the artist; however, there are cases where artists provide no guidance on what or how their work can be recreated. This ambiguity leads to challenges, such as deciding who has the authority to make decisions about recreations of the art.

In one notable example, author Franz Kafka instructed his friend, Max Brod, to destroy his unpublished works, but Brod chose to publish them instead. More recently, singer-songwriter Mac Miller’s label released a new album two years after his death. And, in June 2024, an unfinished novel by Michael Crichton was completed and published with the assistance of the successful thriller writer James Patterson. According to Sherri Alexander, the deceased author’s widow, Crichton — the man who created Westworld, Twister, and Jurassic Park — had conceived Eruption decades before his passing. To preserve her husband’s legacy, Alexander spent years reviewing Crichton’s notes and partial manuscript, ultimately enlisting Patterson to finish the work. Though Mac Miller’s album and the Crichton/ Patterson New York Times bestseller have both been well received, these instances raise questions of whether the artist whose work has been published posthumously would have approved of the release and be proud of the legacy left behind.

The Columbia Journal of Transnational Law reported that researchers at Rutgers University, led by Professor Ahmed Elgammal and Austrian composer Walter Werzowa, were able to use AI to “complete” Ludwig van Beethoven’s unfinished Symphony No.10. The team trained their AI on Beethoven’s entire body of work and “extrapolated the sketches, musical notes, and ideas Beethoven had jotted down before his death.” Similarly, University College London students and researchers Anthony Bourached and George Cann used AI to recreate “previously-hidden works of deceased artists that have been uncovered by X-ray technology.” Thus far, they have recreated several pieces with AI, including a portrait hidden beneath Italian artist Amedeo Modigliani’s Portrait of a Girl (1917). Most notably, a portrait of a crouching woman by Pablo Picasso was discovered underneath Picasso’s The Blind Man’s Meal (1903) using X-ray technology. While this was an important discovery for art historians, in a more controversial use of technology, the work was recreated by training AI to replicate Picasso’s brushstrokes, adding these strokes to the X-ray, and 3D-printing the work. Representatives of Picasso’s estate demanded that the researchers cease any further use of Picasso’s works, citing an infringement “of copyright and in particular moral rights,” and that the public unveiling of the work be canceled.

AI-generated replication of a deceased singer or public figure’s voice also requires balancing artists’ rights, dignity and consent. In a recent example, an AI-assisted podcast featured an AI-generated George Carlin. Carlin’s estate was able to successfully secure a permanent injunction based upon the deprivation of the comedian’s right of publicity and copyright infringement, The musician, Drake, has also been threatened with legal action following the release of “Taylor Made Freestyle,” a song featuring AI-generated vocals by deceased artist Tupac Shakur. Shakur’s estate promptly demanded Drake remove the track from all platforms within 24 hours. According to the estate’s counsel, Drake’s unauthorized AI-recreation of Tupac was a violation of the deceased hip hop artist’s right of publicity and legacy.

Under the U.S. Copyright Act, copyright for works published prior to 1929 are now in the public domain, and copyright for works published after 1978 and unpublished works, like those of Franz Kafka, continue for 70 years after the author’s death. Copyright for musical works (i.e., composition and accompanying lyrics) are treated differently from the copyright for sound recordings (i.e., sounds unaccompanied by audiovisual work). As such, although a musical composition may be protected for 70 years after the death of its last surviving author, its sound recording (assuming it is a work made for hire) is protected for 95 years following its publication.

Copyright protects two types of rights, economic rights and moral rights. Economic rights allow the rightsholder to derive financial reward from the use of the works by others. These rights include the ability to authorize or prohibit reproduction, distribution, exportation, importation, rental, lending, public performance, communication to the public and adaptation. These rights can be freely transferred or licensed to others, allowing creators and their heirs to monetize their creations.

Moral rights allow artists to make decisions relating to the preservation and protection of their connection to their work. These rights, which originate from the French droit moral, vary among countries. For example, many countries, including the U. S. — which has a limited version of moral rights, as discussed below — do not allow the transfer of moral rights, as these are considered personal rights. Also, moral rights may be waived by authors in certain countries (i.e., Canada and the U.S.), but not in others (i.e., France). Importantly, parties may sue for infringement of moral rights, even after the expiration of the applicable copyright term.

In the U.S., moral rights were not specifically recognized until the Visual Artists Rights Act (“VARA”) was passed in 1990, more than 100 years following international passage of the Berne Convention in 1886. VARA provides more narrow protections for moral rights than those afforded to artists in European countries, as it only recognizes the right to have one’s name associated with one’s work and the right of integrity (i.e., the right to object to changes to one’s work that may harm their reputation). U.S. moral rights expire upon death while French moral rights remain in perpetuity, providing rights beyond the expiration of the copyright. The U.S. only protects those who create “works of visual art.” These works would include the type of content explored by Karol and Hecker in their book (i.e., paintings, drawings, sculptures, etc.), but not other visual media such as posters, maps, globes, motion pictures, electronic publications and applied art. European countries — which generally have more expansive moral rights — therefore provide greater protection against creation of posthumous art, including AI recreations. The legislative history of the adoption by the Senate of the Berne Convention in 1988 reflects an assumption that other provisions of U.S. law afforded protections similar to those in Europe; i.e., moral rights equivalencies. More on that in a subsequent insight.

Lutzker & Lutzker is experienced in art law and is available to answer the questions of artists, heirs and potential third-party users of artistic works to navigate the intricacies of posthumous art, particularly AI-generated works.