Memorabilia from John Wayne's Estate Up for Auction

John Wayne, the American actor perhaps best known for the Westerns he starred in, died in 1979 at the age of 72.   Thirty years later he remains as popular as ever –  earlier this year, a Harris poll named him as the third most popular actor in the United States (coming in behind Johnny Depp and Denzel Washington).   His fans are in for a real treat – his family members are putting up for auction a collection of Wayne’s personal belongings. 

The auction, which is being run by Heritage Auctions in Dallas, Texas is the first single-owner auction of Wayne’s belongings since his death.  The 700 items available include the Golden Globe award that Wayne won for “True Grit”, a Stetson cowboy hat that he wore in “The Man Who Shot Liberty Valance”, and a costume from “Sands of Iwo Jima”.  Wayne’s family’s explanation for putting the items up for auction is that his fans had always been tremendously important to him and this was the family’s way of trying to maintain the connection. 

For those interested, public exhibitions of the items will occur in New York and Dallas in mid/late September.  An exhibit and the auction itself will happen in Los Angeles October 3 – 6.  Online bidding is also available

Marvel Wins Copyright Fight with Jack Kirby's Heirs

A judge in the US recently decided a dispute over the rights to various comic book characters between Marvel (and its parent, the Walt Disney Company) and the heirs of the late Jack Kirby. 

Jack Kirby was a comic book artist and author who co-wrote some of Marvel’s most iconic comic book titles, including Spider-Man, the Incredible Hulk, the Fantastic Four, and X-Men.  Marvel owns the right to those characters and, along with Disney, has made a fortune off various movie franchises involving them. 

In the United States, copyright law provides that, in some circumstances, creators or their heirs can regain copyright they have sold to characters or stories after a given number of years.  In 2009, Kirby’s heirs sent termination notices to Marvel, Disney, and other studios, expressing their intention to regain copyright to various creations starting in 2014.  Marvel responded to the termination notices by starting a lawsuit claiming that it owned the works in question.

The case turned on the character of Kirby’s employment relationship with Marvel when the works were produced – specifically, was Kirby an independent freelancer or were the works made at the “instance and expense” of Marvel?   

Marvel argued that it employed Kirby when the works were created and, as a result, owned the works.  Kirby’s heirs argued that Kirby had acted on a freelance basis and that, accordingly, they were entitled to send the termination notices and gain ownership of the works. 

Last week, US District Judge Colleen McMahon ruled in Marvel’s favour.  She found that the issue was not whether Kirby had created the works and characters in question but rather whether his work qualified as “work for hire” under the US Copyright Act of 1909 and in this case she found that it did.  Kirby’s heirs have said they intend to appear the ruling.  

Happy Birthday to Canada (and our National Anthem)

Today is Canada Day, a federal statutory holiday in Canada, which celebrates the anniversary of the July 1, 1867 enactment of the British North America Act (now referred to as the Constitution Act, 1867).  It also marks the anniversary of “O Canada” being officially proclaimed as this country’s national anthem. 

“O Canada” was first performed on June 24, 1880 at a Saint Jean-Baptiste Day Ceremony.  The music had been composed by Calixa Lavallee, a Quebec-born composer, as a setting for a French-Canadian patriotic poem written by Sir Adolphe-Basile Routhier.  

The English version of “O Canada” (which is not a direct translation of the French version) was written by Robert Stanley Weir, a Montreal lawyer, in 1908.  The verses he wrote were published for the Diamond Jubilee of Confederation in 1927.

In the 1960s, a Special Joint Committee of the House of Commons and the Senate was struck to consider making “O Canada” the official national anthem.  In the circumstances, the committee decided it would be appropriate for the government to acquire the copyright to the song. 

Canadian copyright law provides that a work becomes part of the public domain fifty years after the death of the author.  There was no issue with the music, because Lavallee had died in the late 1800s.  However, a complicating factor related to the English words – the committee had proposed changes to some of Weir’s lyrics. 

Weir had died in 1926.  At the time the committee was considering the song Weir’s lyrics were not part of the public domain and his heirs did not approve of the proposed changes to the words.  After some research, evidence was found that established that the copyright to the English words had actually descended to George V. Thompson, a musical publisher.  Mr. Thompson agreed to sell the copyright to the government for $1, although the committee still wanted to settle amicably with Weir’s family. 

Finally, on July 1, 1980, the National Anthem Act proclaimed the French and modified English versions as the national anthem of Canada (and provided that the words and music would be part of the public domain)  – and what a good national anthem it is! 

Happy Canada Day to all the Canadians out there!

Anna Nicole Smith's Estate Loses Legal Fight

The fifteen-year saga started by Anna Nicole Smith against her late husband’s estate appears to have finally come to an end.  Smith (whose given name is Vickie Lynn Hogan) made headlines in the mid-1990s when the then-26 year old married 89-year-old J. Howard Marshall.

Marshall died just over a year after his marriage to Smith.  More than a decade prior, Marshall had established a trust, which had the effect that on his death his assets would pass directly to his son.  Smith brought a claim in Texas against Marshall’s estate alleging that after she married Marshall he had intended to set up a trust for her but that his son had interfered, the result being she received nothing from the estate.   

Along the way, Smith filed for bankruptcy in a California bankruptcy court.  Marshall’s son filed a claim against her in bankruptcy court alleging that she defamed him by having her lawyers make derogative statements about him in the press.  Smith counterclaimed and alleged tortious interference with the gift that Marshall had intended to leave her (essentially, the same claim she asserted in the probate proceeding in Texas).  The bankruptcy court sided with Smith, granting her summary judgment with respect to the claim Marshall’s son commenced and granting her judgment for about $425 million for her own claim. 

Since that time, the matter has bounced around the appeals courts with the parties arguing about whether the California bankruptcy court had the jurisdiction to adjudicate the claims or whether they were properly within the jurisdiction of the Texas probate court.  Smith died in 2007, but her estate continued to pursue her claim. 

Last week the United States Supreme Court settled the issue once and for all.  It found that while the California bankruptcy court had the authority to resolve Smith’s debts it did not have the Constitutional authority to decide the probate dispute.  A result of the decision is that Smith's estate is entitled to nothing from Marshall's estate. 

Gowns, Crowns, and the Electress Sophia

At last, at last..finally it’s here!  Today is the day that Prince William will marry Kate Middleton.  We’ll all finally find out who designed her wedding dress and what royal titles they’ll receive (I’m hoping that the Dukedom of Windsor will be revived). 

Whether there’s nothing you love more than a Royal Wedding, or there’s nothing you’d love more than to stop hearing about the Royal Wedding…today is the day!

In a technical, “birds and the bees” sense, I suppose Prince William has his parents to thank for the fact he’s second in line to the throne.  However, in a more meta-sense, he should be thanking the British Parliament and Sophia of Hanover

In the late 1600s, there was significant concern that a Roman Catholic may end up as monarch in England.  As a result, the Act of Settlement was passed by Parliament in 1701 and designed to secure Protestant succession to the British throne.  It stipulated that the throne would pass to Electress Sophia of Hanover and to those of her descendants who were Protestant and had not married a Roman Catholic (meaning that anyone who was Roman Catholic or married someone who was Roman Catholic was turfed from the order of succession).

As far as the pecking order goes, Prince William is second in line to the throne after his father, Prince Charles. However, there are others out there who do carry the faintest of hopes.  The Wall Street Journal Reports that Karin Vogel, a German therapist who counsels the elderly, holds the distinction of being last in line for the throne – according to the article, she’s was 4,973 in line as of 2001 (although, that list also included Roman Catholics, who’d be excluded from succession). 

Cheers to Kate and William.  As anyone who knows me will attest, the words “morning person” do not apply…so when the early birds finally witness William and Kate’s marriage vows, I will be peacefully asleep.      

A Cotton Legacy...and There Goes Mr. McGregor's Garden

If any of you are woken up by a hippity-hop over the weekend – don’t worry. It’s probably just the Easter bunny coming to deliver chocolate.  The Easter bunny is frequently associated with Peter Rabbit, the literary creation of Beatrix Potter.

Potter was born in 1866 and benefited from the generosity of an estate early in her life – her parents had received inherited wealth from a cotton fortune. As a result, Potter lived and was educated in luxury at home in London, England. 

As a child Potter developed a love of nature that she carried through out her life...and she also developed a love of literature.  She wrote the Tale of Peter Rabbit in 1893 (it was initially written for the son of Potter’s former governess). After being rejected on a number of occasions the story was printed commercially by Frederick Warne & Co. in 1902 – and hasn’t gone out of print since.

The Tale of Peter Rabbit involved the story of a naughty little bunny who was at his best tearing up the garden of a certain Mr. McGregor.  He was joined from time to time by his fluffy sisters - Flopsy, Mopsy, and Cottontail (naturally, the girls were better behaved). 

Potter died in 1943 and left a legacy of much beloved children’s literature (not to mention charming Wedgwood china which is a “go to” when it comes to Christening gifts, but I digress..)

Incidentally, rabbits weren’t Potter’s only beloved animals - I have to say I’ve always loved Potter’s Jemima Puddle-Duck more than Peter Rabbit. However, I’ll leave well enough alone – who needs controversy over a long weekend!? 

Is Tweeting Condolences Appropriate or Just Tacky?

It is often said that there’s no “right” way to grieve the loss of a loved one – however, are some ways tackier than others?  That was a question raised recently in a Globe and Mail article about the increasing trend of announcing deaths and sending condolences using twitter and facebook.

The impetus for the article was the miscarriage recently suffered by Amanda Holden, a television presenter in the United Kingdom.  After the tragic news became public, it appears that a number of celebrities in the UK took to twitter to send their condolences. 

For those not familiar with twitter, it’s a social networking site where members can send out messages (with a maximum 140 characters) for all the world to see.  Former Spice Girl, Emma Bunton, tweeted “Absolutely devastated for @Amanda_Holden and chris.  Thinking of them and sending our prayers at this very sad time”.  Several other British celebrities followed suit.    

While expressing sympathy and sending best wishes is certainly a kind thing to do, is using twitter simply a sign of the times or would a phone call or letter have been more appropriate?  Jan Moir, a columnist for the UK’s Daily Mail, certainly thinks saying "sorry for your loss" over twitter amounts to a faux pas.  She asks whether there is “something distasteful about this new eruption of celebrity-to-celebrity condolences, played out in the Twittersphere hall of mirrors to an audience of millions”.   

Whether it’s appropriate or inappropriate, one person who didn’t seem to mind was Amanda Holden herself.  A few weeks after her miscarriage, she sent a message to all her followers on twitter thanking them for their “support and love.”

Poe's Mysterious Toaster Continues to be a No Show

A mysterious visitor's annual ritual of leaving cognac and roses at Edgar Allan Poe’s graveside appears to have come to an end after more than sixty years. 

Poe was born in Boston on January 19, 1809.  His early life was difficult – his father abandoned the family when Poe was young and his mother died a year later from consumption. 

Poe moved to New York in the early 1830s, which is when his publishing career took off.  He would become known for his macabre tales and poems.  While Poe enjoyed prominence, he had difficulty supporting himself as a writer and would frequently have to borrow money.  Over time, his behaviour started to become erratic and he developed a drinking problem (apparently fuelled by the sudden death of his wife).  Poe died in 1849, at the age of 40 under mysterious circumstances – his cause of death is still unknown and theories have included suicide, murder, alcoholism, and hypoglycemia.

Poe's funeral was a simple one and reportedly was attended by few.  He was interred at the Westminster Hall and Burying Ground, initially without a gravestone - although one was put in place in 1875.

The mysterious visits to Poe's grave apparently started in the 1940s (and were first referenced in print in the Evening Sun, a Baltimore paper, in 1949.)  The “Poe toaster”, as the visitor was called, was always dressed in black, and wore a white scarf and a wide-brimmed hat. The visits continued every year on the anniversary of Poe’s birth, with the visitor leaving a half-empty bottle of cognac and three roses on Poe’s gravestone.  

In 1993, the visitor started leaving notes and one left in 1998 indicated that original Poe toaster had died and the tradition had been passed to his two sons.  Apparently, the sons didn’t take the duty seriously and in 2009 the visits stopped. Why is unclear, although the fact that 2009 was the 200th anniversary of Poe’s birth might have had something to do with it.

It remains to be seen whether the Poe toaster will reappear.  In the meantime, various “faux Toasters” have taken up the mantle and have been trying to reenact the ritual themselves.  

In the Days of Auld Lang Syne, Robert Burns Died Intestate

In North America and the United Kingdom, many will ring in the New Year by singing “Auld Lang Syne”.  Canadian band leader Guy Lombardo is generally credited with popularizing the use of the song on New Year’s Eve in North America back in the first half of the 20th century. However, the song had already been popular in Scotland for about 150 years and actually originates from a poem written by Scottish poet Robert Burns in 1788. 

Burns was born in Alloway, Scotland in 1759.  Initially a tenant farmer, he rose to prominence through the publication of his poems and songs during the 1780s.  His health started to fail while he was relatively young and he died in 1796 at the age of 37.  He was survived by his wife, Jean Armour, and his five children (one of which had resulted from a tryst with his mother’s maid).

Like far too many, Burns did not give the appropriate priority to estate planning and died without a will.  It was left to his widow, Jean, to administer his affairs.  A testament dative for his estate can be found in the Dumfries Commissary Court records – this is not a will but rather a court order in Scotland appointing and confirming an executor when an individual dies without a will.  Apparently, there were debts owing to Burns’ estate and to collect them his widow required the authority to act as his personal representative.  An online version of the testament can be found here, here, and here.

Of additional interest is the “State of Gilbert Burns’ Acceptance to Mr. Burns’ Estate” (Gilbert was Burns' brother).  It indicates that after Burns’ death, a plan was devised to raise money to support his family by publishing a four volume edition of his complete works.   It also indicates that the estate paid an annuity to Burns’ mother.  His daughter with the maid doesn’t seem to have ended up all that lucky – the estate appears to have supplied her with a year of “room, board, and washing”. 

Have a safe and happy New Year’s Eve and a wonderful New Year!

Celebrating the Christmas Eve Birth of Winnie the Pooh

Eighty-five years ago today, on December 24, 1925, a short story written by A.A. Milne (then an assistant editor at the humour magazine Punch) appeared in the London Evening News.  It was titled “The Wrong Sort of Bees” and told the tale of a boy named Christopher Robin and his bear, “Winnie-the-Pooh”.

The boy was based on Milne’s young son (also named “Christopher Robin”) and the bear of very little brain was based on Christopher’s teddy who, having been initially named “Edward Bear”, was later renamed “Winnie-the-Pooh” – a name derived from combining the names of a real bear and a fictional swan.  “Winnie” was the name of a bear in the London Zoo who had been the mascot for the Winnipeg regiment of the Canadian army while “Pooh” was the name of the pet swan in Milne’s book, “When We Were Very Young.”

In 1926, the book Winnie-the-Pooh was published, which featured Christopher Robin, Pooh, and his other animal friends (who were also based on Christopher’s stuffed animals).  Two more books would follow by Milne about Pooh and the gang before the rights to the characters were licensed in the United States.  Currently, Christopher’s stuffed versions of Pooh, Piglet, Kanga, Eeyore, and Tigger reside in the New York Public Library

Milne died in 1956 and was survived by his wife and Christopher.  In his will, he left his assets in trust to his widow for her lifetime and, upon her death, in trust for his descendants and a few charitable institutions. Unfortunately, it has not all been smooth sailing – for a good part of the past decade Christopher’s daughter, Clare, was involved in unsuccessful litigation with the American licensor of the works over entitlement to royalties.  

For those in New York City over the holidays, Christopher’s stuffed animals can be viewed at the Children’s Center in the Schwartzman Building at 5th Avenue and 42nd Street.

Have a very Merry Christmas!

Building a Legacy, One Terracotta Warrior at a Time

Over the weekend, I had the opportunity to see the “Warrior Emperor and China’s Terracotta Army” exhibition at the Royal Ontario Museum.  The exhibition showcases funerary art from the tomb of Warrior Emperor Yin Zheng, the first emperor of China – including some of the life sized terracotta warriors with which he was buried.   

Yin Zheng is a pivotal, but controversial, figure in China’s history.  He unified China and went on to become its first emperor in 221 BC, ruling until his death in 210 BC.  While he is credited with developing a strong centralized government and bringing about social and cultural reform, he was an autocratic leader and his rule was characterized by tyranny and bloodshed. 

Yin Zheng wanted to ensure his continued dominance, so he built a massive mausoleum – at over 2.18 million square meters, it’s the largest in history – and filled it with 8000 terracotta warriors to help him rebuild his empire in the afterlife.  The site was first discovered by farmers in 1974 and, to date, over 2000 terracotta warriors, horses, and chariots have been unearthed. 

It is believed that construction of the mausoleum started in 246 BC, when Ying Zheng was only 13, and involved more than 700,000 builders.  The project was so labour-intensive not just because of its sheer size, but because Ying Zheng had directed that no two warriors should look exactly alike, the result being that each is unique.  Also inside the complex are palaces, watchtowers, and various artifacts that he anticipated needing in his afterlife. 

For those who are interested in seeing the exhibition, it runs until January 2, 2011. 

When It Comes to Money, Some Dead Celebrities Won't Stop 'Til They Get Enough

Michael Jackson may have died, but his ability to make money certainly has lived on! Over the past year, the King of Pop’s estate has raked in more than $242 million. In fact, Jackson apparently made more than any living celebrity, with the exception of Oprah.   

The sources of income are numerous – the estate has made money from last year’s film, “This is It”, radio play and album sales, memorabilia, a Jackson-themed video game, and the re-release of Jackson’s autobiography. 

The cash flow doesn’t show any signs of slowing – there’s a deal with Sony to put out unreleased recordings by Jackson which is expected to bring in a grave-rattling $200-250 million over the next seven years.  Additionally, the estate still holds the music catalogue that Jackson purchased, which includes songs by, amongst others, the Beatles, Elvis Presley, and Bob Dylan. 

Jackson’s not the only celebrity making money in the afterlife.  Jackson topped Forbes’ recent list of the 13 top earning dead celebrities, but there were others who made a decent showing.  In at number 2 was Elvis Presley, whose estate brought in a cool $60 million. 

Charles Schulz, the creator of Charlie Brown and the rest of the Peanuts gang, placed 4th ($33 million) with Theodor Geisel (a.k.a Dr. Seuss) coming in 7th place ($11 million). An interesting addition to the list was Albert Einstein, whose estate landed in 8th place with $10 million – most of Einstein’s post-death earnings have come from tie-ins with his name or image.

Forbes’ also produced a list of the “also rans”, who didn’t make the top 13, but whose estates are still making money.  Making the list are Michael Crichton, James Dean, Bob Marley, Marilyn Monroe, Tupac Shakur, Frank Sinatra, and Andy Warhol.   

Happy Hallowe’en!

Stieg Larsson's Books Might Be Good, But His Estate Planning? Not So Much...

Swedish author Stieg Larsson died without knowing how successful the publication of his “Millennium Trilogy” would be.  Since his death, it is estimated that worldwide sales of his books have topped 40 million. Unfortunately for Eva Gabrielson, Larsson’s partner of more than 30 years, she will not be sharing in any of the financial benefits.

Larsson died without a will (this is called dying “intestate”) and Swedish law does not provide inheritance rights to common law spouses on an intestacy.  As a result, the beneficiaries of Larsson’s estate are his father and his brother.    

Gabrielson’s recent interviews on the CBC radio show, The Current, and with the Globe and Mail provide additional information about her situation.    

While the intestacy law in Ontario is more forgiving to common law spouses than it is in Sweden, it does not make things particularly easy.  Part II of the Succession Law Reform Act provides inheritance rights to a spouse on an intestacy.  However, it defines “spouse” as either of two people who are married to each other, leaving a common law spouse without rights. 

Similarly, while s. 5(2) of the Family Law Act entitles a surviving spouse to elect to equalize net family property (which is the same property division that occurs on divorce), the election is available only when the spouses were married - it doesn't apply to common law relationships.   

This does not mean that a common law partner has no redress at all.  Under Part V of the Succession Law Reform Act, a common law partner has the right to bring a claim for dependant support.  Depending on the circumstances, common law claims on the basis of quantum meruit or constructive trust might also be available. 

Still, it hardly seems desirable for a surviving partner to be put to the expense and uncertainty of litigation on the other partner’s death.  Additionally, the litigation can become very contentious when the family members who are to receive the estate under the intestacy rules become reluctant to part with any of their inheritance. 

The best way to avoid these types of problems is to have a will.  That way the deceased's estate will be distributed as she or he intended – no doubt that Eva Gabrielson is wishing that Stieg Larsson had one. 

Coming Soon - Estate Disputes Hit the Boob Tube

It was bound to happen. Really, it was only a matter of time.

A reality show about estate litigation is currently in the works. 

I happened upon this frightening piece of news while reading the Wealth Law Blog (which is published by an Oregon-based law firm).   

In mid-July, the production company responsible for “LA Ink” and “Storm Chasers” sent out a casting call for residents in the New York Tri-State area.  The production notice reads in part:

Are YOU and YOUR RELATIVES arguing over a loved one’s Will? Do you need help resolving family conflicts and evaluating the worth of objects in the Estate?

Was your loved one’s Will vague– who should get what -- and you and your relatives can’t agree, we want to hear from you!!!

Billing the show as a “life-changing new series”, the production company promises to settle the participants’ “estate nightmare” as well as to financially compensate them. 

The casting call doesn’t indicate exactly how they intend to resolve the estate disputes – will the program have a touchy-feely Oprah-esque sentiment to it, or will things be resolved Judge Judy-style?  

I’m curious to know what type of estate disputes will be featured.  A secret I’ll share with you is that a lot of estate litigation isn’t all that exciting – I doubt that disputes over trustee compensation or the appropriate interpretation of administrative clauses in wills would make for particularly fascinating viewing. 

So, would I tune into a show like that?  On the one hand, the idea is about as appealing for me as I imagine that sitting around watching COPS would be for your average police officer.  On the other hand, I can already feel the morbid curiosity getting the better of me.