Singer Amy Winehouse made her mark with her 2006, five-Grammy-Award-winning album, “Back to Black.” Fans have been hoping for a 2011 follow-up compilation. But her sudden passing over the weekend has left the apparent CD-in-progress as a question mark: Will her estate opt to publish such material, though the singer reportedly was not satisfied with it?
There are plenty of cautionary tales, as well as success stories, that yield tips about how to do the posthumous release right, he notes. Garage tapes, apartment finds, and studio outtakes have all supplied new material to extend the careers of everybody from Buddy Holly and Selena (both of whom have new releases coming out in the next year) to Tupac Shakur, Elvis, Jimi Hendrix, and Michael Jackson.
“The biggest thing to avoid is the whiff of exploitation,” points out Mr. Caulfield. Even the rabid fans who will buy anything from their idols can get turned off if they sense they are being used. “The material has to be worth it,” he says, adding that if the effort is perceived to be a crass recycling with nothing new to add, it won’t sell beyond the hard-core base.
It’s key for a posthumous release to have the imprimatur of someone close to the artist, he says. That wasn’t exactly the case with “Michael,” released after Mr. Jackson’s death. “You had lawyers, record companies, and the family all in that mix, and nobody was really sure if this was actually something that Michael would have wanted,” he says. The album was criticized for exploiting the singer.
Indeed, it is somewhat safe to assume that if there is material sitting around in old file cabinets that an artist chose not to release during his or her lifetime, “there is probably a good reason,” says entertainment lawyer Barry Mallen, who has advised the Bob Marley estate.
However, not all artists are the best judges of their own material, says John Covach, a rock historian and music professor at the University of Rochester in New York. As a historian, he adds, “I would prefer to see everything – the good, bad, and everything in between.”
Then again, sometimes a posthumous release can confirm that a musician was a good arbiter. Professor Covach, after hearing material Elvis had nixed in his lifetime, concluded that “Elvis was actually a pretty good judge of what was working and what would not be a good idea to show people.” He notes, “Many people thought of Elvis as a dumb singer,” so being able to see what Elvis didn’t want published gives people more appreciation for his artistry.
The Digital Age has introduced new complexities into the realm of posthumous releases, since there are multiple copies of most creations these days. As a record producer, Eric Sarafin says, “I would not have any problem with my son benefiting like crazy from anything I’ve created, after I’m gone.” But even if he had qualms and tried to ensure there were no unintended releases by destroying unwanted efforts, that might not be enough, says the adjunct professor at SAE Institute in Los Angeles.
“It’s pretty hard to really destroy anything for sure in the Digital Age,” he says, adding, “Who knows what producer might have multiple copies of some tracks I laid down sitting around on a laptop somewhere?”
Nevertheless, points out Mr. Mallen, “Contracts usually spell out quite clearly who owns recordings and who has the right to benefit from them.”