Even if they express their wishes in their wills, artists can have their wishes contested after death.
Colombian Nobel Prize winner Gabriel García Márquez died in 2014, leaving behind an unfinished novel. However, he verbalized publicly that he didn't want the book to be released. "It must be destroyed," he said, referring to his own manuscripts.
Ten years later, on the date of García Márquez's 97th birthday, March 6th, the novel was published, against the writer's will, under the title "Until August".
And the question remains: even if the writer had expressed his will during his lifetime (but nothing was officially registered), can his children's attitude be considered legal?
"Every expression of will made during life, in order to take effect after death, must be made in a will," explains Virgínia Arrais, 32nd Notary Public in Rio de Janeiro and Professor of Notarial and Registration Law.
According to Luiz Fernando Plastino, a specialist in Intellectual Property at Barcellos Tucunduva Advogados (BTLAW), leaving an unpublished work like Gabo's is not a property right. "It's another type of copyright, which the law determines will be exercised by the author's successors after his death. There is therefore disagreement about whether the heirs really need to respect this type of last will and testament, which does not imply any economic use," he says.
The expert recalls other famous literary cases of unfulfilled requests. "If someone wants to ensure that a work is never published, they have to destroy it. It is possible to dispose of the rights to edit, reproduce and adapt a work in a will, for example, by transferring them to someone you trust, but we have famous examples where even this wasn't enough to prevent its publication, such as the works of Franz Kafka, poems by Roberto Bolaño and, here in Brazil, the poem Os Filhos da Coruja, written by Graciliano Ramos under a pseudonym and published this year against his wishes," he recalls.
And what could happen if one of the brothers didn't agree with the publication of this book hated by the Colombian? "Any will or declaratory deed can be contested, due to free access to the judiciary. However, this does not mean that the claim will be upheld. In order for it to be upheld, the interested party must disprove the presumption of validity of the public instruments, proving the existence of a consent or social defect in the manifestation of the will of the author of the will or public deed at the time they were drawn up," says Virgínia.
*Virgínia Arrais - 32nd Notary Public of the City of Rio de Janeiro, PhD student and Master in Law. MBA in Judicial Power from FGV/Law and in People Management from USP/SP. A specialist in notarial and registry law, she is the former coordinator of the School for Clerks of the Brazilian Notarial College-RJ. She studied International Business at the University of California, Berkeley/USA.
*LuizFernando Plastino - Lawyer specializing in Intellectual Property at Barcellos Tucunduva Advogados (BTLAW). PhD in Civil Law from USP - University of São Paulo. Master in Civil Law from USP - University of São Paulo. Postgraduate in IT Law from ESA-OAB/SP - Escola Superior de Advocacia da Ordem dos Advogados do Brasil, São Paulo Section. Bachelor of Laws from USP - University of São Paulo. Member of the Intellectual Property Dispute Resolution Center.