Consider a songwriter who wants to ban the use of her music in advertisements or an author intent on eliminating the possibility that her novel will be optioned to a filmmaker. The law frowns upon these sorts of alienability limitations and use constraints. Property – including intellectual property – comes with an assorted bundle of use and alienability rights. The law detests unreasonable restraints on alienability. Courts have deterred owners from placing use limitations on property that bind future owners. Restraints on alienation are said to be repugnant, as are future interests that vest too remotely. The dead hand is feared and the living hand is protected. Exceptions can be noted, such as short-term use limitations between contracting parties, equitable servitudes, and the nearly extinct determinable estates. These exceptions, however, are generally present either in commercial or charitable contexts. In the private noncharitable donative context, which we will be concerned in the pages that follow, use and alienability limitations are more closely scrutinized. This Article is concerned specifically with use restrictions in the private non-charitable donative context.
Thomas E. Simmons,
A Will for Willa Cather,
83 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol83/iss3/7