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mittu
05-13-2005, 11:52 AM
Here is a hypothetical situation that I hope will explain what I am asking. A recording artist (we'll call him Sammy Singer) records and releases a single that does rather well, reaching #1 and making lots of money for Sammy. A couple of years later Sammy kicks the bucket (or is it buquet?) and leaves all his money to his brother Sonny. Sonny is overcome with his new riches and spends it all on fast cars and loose women, pretty soon it's all but gone.

Now, a couple of years after Sammy's unfortunate demise (4 years after the song was a hit) a failed recording artist (Willy Writer) rears his head clamining that Sammy Singer stole the song from him. Willy can prove that he wrote an incredibly similar song and copyrighted it a few years before Sammy recorded his version.

Willy is understandably incensed and demands compensation for someone else making money from his idea without permission and decides to sue. Of course, he can't sue Sammy so what does he do? Does he have a legal right to sue Sammy's estate for the money, i.e. sue Sonny? If so it seems hardly fair that Sonny should have to pay out of his own pocket (remember he has spent all Sammy's money on non-refundable things) for a crime he didn't commit and knew nothing about. However, on the other hand it hardly seems fair to Willy that someone made big money out of his product and he has no way of gaining compensation.

What's the straight dope on situations like this, who can Willy sue and what chance does he have of winning?

P.S. this isn't based on any real life-case and I for one won't be acting on any of the advice you give so feel to WAG away.

Annie-Xmas
05-13-2005, 12:00 PM
Thompson vs. estate of Larson (http://www.dramaturgy.net/RENT/) is similar to your hypothetical case scenario.

Gfactor
05-13-2005, 12:09 PM
Couple of issues:

1. Three year statute of limitations on copyright infringement actions. So if it is 4 years after the song was a hit, the recoverable damages may be limited.

http://law.freeadvice.com/intellectual_property/copyright_law/copyright_statute_limitations.htm

2. Assuming copying is still going on, the claim against the estate is probably barred. Claims against probate estates are generally subject to a very short time-bar.

3. Willy sues whomever is currently publishing and distributing the album.

Diceman
05-13-2005, 12:28 PM
Willy can sue Sammy's estate, but since the will has already been probated (I assume), Sammy's estate won't have any assets left except the royalties for his song. Willy can get those, but after that he's outta luck.

ouryL
05-13-2005, 01:16 PM
Willie still must prove his allegations, which may be insurmountable, since there is no respondent who is answerable.

Gfactor
05-13-2005, 01:22 PM
Willy can sue Sammy's estate, but since the will has already been probated (I assume), Sammy's estate won't have any assets left except the royalties for his song. Willy can get those, but after that he's outta luck.

I doubt the estate would have any assets at all once probate closed. The right to receive royalty income is an asset that would have been transferred to Sammy's heirs as part of the probate proceedings. If there were an after-discovered asset, the estate would have to be reopened so that the asset could be distributed to its proper recipient.

E.g.,

Newly Discovered Property
On occasion, years after a probate case is closed, someone will discover that decedent owned other property that was not included as part of the original probate. If it has been more than one year since the verified closing statement has been filed, the case will have to be reopened in the district court. If this other property is discovered after an estate is settled and the personal representative discharged, only the district court has jurisdiction to appoint a successor personal representative to administer the subsequently discovered property. Section 45-3-1008.

http://jec.unm.edu/resources/benchbooks/probate/09.htm

and

http://www.legislature.mi.gov/mileg.asp?page=getObject&objName=mcl-700-3959

Gfactor
05-13-2005, 01:24 PM
respondent who is answerable.

Where did you get this terminology?

If you sue someone, and that person does not respond, you get a default judgment.

ouryL
05-13-2005, 03:58 PM
Where did you get this terminology?

If you sue someone, and that person does not respond, you get a default judgment.


What I meant to say is the estate cannot affirm or deny the allegation, since the respondent is dead, it can only say "prove it". The dead person cannot be served, so the estate must be. Claims against must be made in a timely manner. Once assets from a estate have been distributed by the probate court, no further claim can be made since the estate is official dissolved - it don't exist anymore.

Gfactor
05-13-2005, 04:25 PM
What I meant to say is the estate cannot affirm or deny the allegation, since the respondent is dead, it can only say "prove it"..

Got a cite?

I've done a good bit of probate lititigation, and have never encountered this rule. In fact, I and respected lawyers who represented the other side have all broken this rule. The lawyer for the estate signs the answer, and must do so after making diligent inquiry. That means asking people who might know the facts and forming a conclusion about the truth or falsity of the allegations in a complaint.

The dead person cannot be served, so the estate must be.

And we are all glad for that.


Claims against must be made in a timely manner.

I thinks someone said this earlier. :D

Once assets from a estate have been distributed by the probate court, no further claim can be made since the estate is official dissolved - it don't exist anymore.

NQR. The estate is closed. Under certain circumstances, it is subject to reopening.

In this case,

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=485&invol=478

a creditor was allowed to assert a claim four years after the nonclaim deadline ran.

Obviously, in most cases, the assets will have been distributed and dissipated by the time a creditor tries to reopen an estate, but it is false to say that the estate is dissolved.

I once had to reopen an estate 15 years after it had closed in order to litigate a dispute over a deed.