Posthumous publication is not a new feature in the writing world. Several critically acclaimed works, such as Emily Dickinson’s Poems of Emily Dickinson, Stieg Larsson’s The Millenium Trilogy and Zora Neale Thurston’s Their Eyes Were Watching God, are examples of literary works where the authors received the applause they deserved in their lifetime after their deaths. While the prospect of a literary afterlife is something that many authors pursue, can a case be made for the posthumous publication of literary work when the author expressly said no?
Gabriel García Márquez (6 March 1927 - 17 April 2014) was an influential Colombian novelist who won the Nobel Prize for literature in 1982. His final book, Until August, was published on 6 March 2024, on what would have been his 97th birthday.
The book was published against García Márquez’s explicit instructions that the book’s manuscript be destroyed after his death. The publication of the book has caused controversy, and prompts the legal question of whether the posthumous publication of written works without consent is permissible in terms of South African law.
García Márquez worked on about five drafts for his final book. He was not satisfied with the book, and told his sons (and heirs) Gonzalo and Rodrigo, that he needed the book to be destroyed. The author’s diagnosis with dementia ultimately put an end to his writing. After his death and the ultimate publishing of the book he wanted destroyed, his sons suggested that his ten-year battle with dementia resulted in him being overly critical of his work and heightened his sense of perfectionism. They chose to publish the book against his wishes to prioritise readers’ pleasure and to affirm their father’s writing prowess, insisting that the world deserved a final book.
The crucial role of copyright law in protecting creative works and intellectual property cannot be overstated. Copyright is regulated in terms of Copyright Act 98 of 1978. Through this statute, exclusive rights to creators of original works are granted. It is necessary to consider what copyright protection is afforded in terms of the Act, particularly in relation to posthumous release of works.
In terms of section 22 (1) of the Copyright Act, copyright is transmissible as movable property by means of assignment, testamentary disposition or by operation of the law. However, this assignment or testamentary disposition of copyright is subject to limitation in terms of section 22(2), as it may apply only to some of the acts which the owner of the copyright had the exclusive right to control. Section 22 (2) of the Copyright Act also states that this may apply to a part only of the term, or to a specific country or to another specified geographical location.
In terms of section 3(2) of the Copyright Act, copyright lasts for the author's lifetime and will also extend to 50 years after the author's death. Copyright also works in conjunction with various moral rights in terms of section 20. Moral rights include the right to be identified by name as author and to object to any distortion, mutilation or other derogatory action in relation to work that could be prejudicial or dishonouring to reputation. It is also necessary to note that the moral rights of an author share an intrinsic link with the author’s common law personality rights. Examples of personality rights include the right to control use of your identity.
It is also necessary to note that the moral rights of an author share an intrinsic link with the author’s common law personality rights. Personality rights, such as the aforementioned moral rights, can only be enforced by the person who claims that their right is being infringed. These rights are also untransferable. The argument has been made that, just like personality rights, moral rights cannot apply to a person who has passed away. Because it is impossible to extend for someone who has passed to assert claims in court and because those who can potentially act as claimants on García Márquez’s behalf are exactly those who published his work against his explicit instructions, there is no avenue for legal recourse.
Upon consideration of the rationale, we can see that a claim of non-compliance with copyright restrictions and infringement of moral rights might not stand. But what about the moral implications of almost tampering with someone's legacy, even if you do so with good intentions? Were Rodrigo and Gonzalo really set on the preservation of their father's legacy or was the publication of the book motivated by economic gain?
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