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"Who Owns a Suicide Note?"

Slate's Explainer answers, "Either the sheriff or the medical examiner"; but I don't think that's quite right.

A suicide note is a tangible item that was owned by the person who committed suicide; the property rights in it, as with all other property, go to the person's heirs under the will or under intestate succession rules (if the person died without a will). The government may well have considerable rights to hold on to the tangible item for quite a while, because it's evidence in the investigation of the person's death. But that doesn't mean the government now "owns" the note, only that the law allows it to keep temporary custody of the tangible item.

The same is true of the suicide note as a copyrightable work. Any note that's longer than a few words is protected by copyright, even if there's no copyright notice; that work is originally owned by the author, but when the author dies it goes to the author's heirs. The government's temporary custody of the note may physically block others from copying the copyrighted work, but the government doesn't own the copyrighted work.

As the Explainer points out, the government may also have -- depending on state law -- have the duty to place the contents of the note in the public record. I expect that such state laws do not violate federal copyright law, because such placement would be "fair use," despite the general principle that fair use is rarely available as to unpublished works. And fair use may also allow the media and others to further reprint what they see in the public record.

But none of this makes the government the "owner" of the copyright in the suicide note, because the government lacks a quintessential right of an owner: The legal right to exclude others from using the property. If, for instance, the suicide's heir reads the suicide note before the police show up, the heir may then publish the text of the note, and the government can't stop him: They don't actually own the copyright. If a third party publishes the text of the note, perhaps that might infringe the copyright in the note (unless that too would be fair use, which it well might be) -- but it would be the heirs, not the government, who would decide whether to sue over the infringement, because it is the heirs who own the copyright.

Now, as I said, it might well be -- especially if the note is placed in the public record and can then be copied freely from there (presumably on a fair use theory) -- that everyone would then be able to publish the note without copyright liability. But that just means that the note effectively wouldn't be owned by anyone: It would effectively stop being property at all, much like the works of Shakespeare stopped being property. (I say "effectively" because, unlike with Shakespeare's works, the note would still be technically covered by copyright law, but by hypothesis that formal protection would have no effective bite because of the broad fair use rights.)

So, the suicide note as tangible item would remain owned by the heirs, though the government would have temporary custody (as the body of the Explainer item discloses). The suicide note as copyrighted work would either be owned by the heirs -- subject potentially to some considerable rights on the government's part to place the note in the public record -- or would be effectively no-one's property, if the fair use rights are so broad that anyone would be free to copy it. The copyrighted work would never become the government's property in the sense of the government's having the right to stop others from using it.

Finally, this highlights a broader point: One often hears that the options are whether one entity owns the property or another entity owners the property, for instance "Do consumers own their personal information or do merchants?" But there's also often a third option -- no-one owns the property any more, and it's free for everyone to use. That's generally the case, for instance, as to facts (such as information about certain transactions, which the consumer, the merchant, and anyone else who learns about it are all free to disclose). And it may end up being the case for suicide notes that end up in the public record.

Sean M:
This also ties into the first day of 1L Property law point that property is more than just the thing. Property is a bundle of rights, and some people may "own" some of those rights and other people "own" other of the rights. For instance, the family would "own" the copyright, but the medical examiner "owns" the right to tangibly possess the note itself for quite a bit of time.
5.6.2008 8:44pm
Almijisti (mail):
I think the answer depends on who the note was intended for--especially of the note were "delivered" to such person (i.e., the person who discovered the note was, in fact, the intended recipient).

Presumably, a suicide note is left for whomever the decedent would have reasonably believed would be the first to come across the corpse. In some instances, first responders such as police, emergency medical techs, etc. would be the very persons that a "reasonable person" would think would be the first to take the note and, hence, become the owner (though, I imagine, they would return the note to next of kin in most instances and convey any related rights along with it)

I would hold that only where circumstances are such that it is not possible to tell who the intended recipient was would such a note belong to the estate of the decedent.

If the question is who holds copyright, that would follow along the same principles. By delivering an original letter to another person, the author extinguishes any copyrights to that particular letter, (if I remember my copyright law well enough...Dr. Post?). Assuming my memory has not failed me, and following the logic outlined above, the owner of the copyright is, again, whoever was the intended recipient of the note.
5.6.2008 9:09pm
Hoosier:
I had never even thought of the legal issue involved. But this made me wonder: How much would the original of Kurt Cobain's suicide note fetch? I can understand why the heirs of a famous suicide would not want the note to be in the possession of others. The chance for that sort of abuse-for-profit would always be on the family's mind.
5.6.2008 9:27pm
another commenter (mail):
Could the note writer forfeit his property right in the note in much the same way an armed robber forfeits his property right in his gun?
5.6.2008 9:43pm
Lior:
Ian't it the case that the government cannot own copyrights?
5.6.2008 10:09pm
R_S (mail):
Lior wrote:

"Ian't it the case that the government cannot own copyrights?"

The government can own a copyright, if ownership of a copyright is transferred to the government. What the government doesn't get is a copyright to any work it creates. See 17 U.S.C. 105.
5.6.2008 10:16pm
Eugene Volokh (www):
R_S: Note also that 17 U.S.C. 105 applies only to the federal government -- state and local governments (and their subunits, such as state universities) can indeed get copyrights to work they create.

Another Commenter: Whatever the scope of forfeiture may be for instrumentalities of crime, suicide isn't a crime, and a suicide note isn't an instrumentality of crime.
5.6.2008 10:25pm
scosm:
Isn't the suicide note a case of abandonment, unless it is addressed to another? Killing oneself seems like a pretty clear act signalling abandonment.
5.6.2008 10:30pm
Bruce Hayden (mail) (www):
Also, the government cannot on its own put the note in the public domain, as that term is used in copyright law. The ownership of the copyright would go by devise or descent to the suicide's heirs.

The government may publish it, under either a theory of implied license or fair use. And, those who read it there and republish it might be able to do so on the same or similar grounds.

I would think that the physical note would be in a similar situation. It is obviously tangible personal property. It is also evidence, and so the state can seize it as such, and I assume routinely does.

But, when the state is done with it, I would think that it could not just give it away, raffle it off, etc. Rather, it would have to return it to the heirs of the suicide.

Oh, and as noted above, the government works exception to copyright does not apply, unless the person killing himself did so within the scope of his employment with the U.S. government. Well, ok, if he signed a work for hire agreement before his death, then maybe the party paying him for drafting the suicide note might get ownership. Likely though it would not fall within the categories of legitimate work for hire.
5.6.2008 10:52pm
Bruce Hayden (mail) (www):
Isn't the suicide note a case of abandonment, unless it is addressed to another? Killing oneself seems like a pretty clear act signaling abandonment.
I disagree. The typical purpose of a suicide note is to tell people why the suicide did kill himself. Often, it is intended for the express use (i.e. reading) of his family. The government's use is only peripheral to this intent.
5.6.2008 10:55pm
another commenter (mail):
EV: I recognize that the forfeiture argument may not be good, but I dispute your claim that suicide is not a crime. Not that I'm expert, but a quick search on Lexus brought up the following.

"Suicide . . . [is] a common law crime in Virginia as it [is] in a number of other common-law states." Wackwitz v. Roy, 244 Va. 60, 65 (Va. 1992).
5.6.2008 11:04pm
Bruce Hayden (mail) (www):
I would suggest that the importance of suicide being a crime is that that would typically give the government the right to seize the physical suicide note as evidence of a crime under its police power (which we talked about a day or two ago). It may be able to do so anyway, but I would think it to be much easier if a crime were involved.
5.6.2008 11:08pm
Milhouse (www):

By delivering an original letter to another person, the author extinguishes any copyrights to that particular letter, (if I remember my copyright law well enough...Dr. Post?).

Huh? Why on earth would that be? I have always understood that the addressee of a letter owns only the physical copy, while the copyright remains with the writer.
5.6.2008 11:18pm
jccamp:
Law enforcement would of course seize any suicide note(s) for forensic examination. However, at the conclusion of the police investigation (confirming self murder), it is not uncommon for the family to ask for the return of suicide note(s). The police would normally do so, unless they were aware of some dispute within the family about actual ownership, in which case, it would probably go to the first claimant who arrives at the police department with something from a judge.

Since the contents of the note are part of the official file, they become public record as soon as the case ceases to be active. In a high profile case with public interest, the contents may be released much sooner than an official conclusion (about manner of death).

If the family did not specifically seek the return of a suicide note, it would remain in police custody and eventually it wold be destroyed. Especially if the note was marred with fluids or matter from the suicide, or if the tone of the note was especially disturbing (say, accusatory toward named individuals), the police probably would not mention to the family it was theirs if they asked.

It was my experience that families usually asked for notes, and even weapons used in a suicide, something which surprised me when I first encountered it.
5.6.2008 11:25pm
Milhouse (www):

"Suicide . . . [is] a common law crime in Virginia as it [is] in a number of other common-law states." Wackwitz v. Roy, 244 Va. 60, 65 (Va. 1992).

I suppose anything might be a crime somewhere, but surely these states are exceptions.

Hmm, I wonder whether Lawrence invalidates laws against suicide. Surely suicide is the most intimate and personal thing a person can do, and is a far greater expression of personal autonomy than is consenting to sodomy; if states cannot ban sodomy, how can they possibly ban suicide?
5.6.2008 11:25pm
TerrencePhilip:
This brings to mind an interesting question-- what IS the extent of the government's power to seize and hold private property for evidence, and at what point must it be returned or at least compensated.
5.6.2008 11:35pm
jccamp:
I suppose anything might be a crime somewhere, but surely these states are exceptions.

I believe that an attempt to commit self-murder (suicide) used to be a crime in most jurisdictions, simply to provide the police with a mechanism for putting such a person in temporary custody (to prevent future attempts). Current laws generally allow the police to take such a person into temporary custody and immediately deliver him/her to a mental health facility, so attempt suicide has been decriminalized in most places.

Actually committing suicide was probably never a crime, since the success would pretty much invalidate the state's interest in custodial intervention.

Police are generally charged by statute with investigating unattended (suspicious, violent, accidental, etc but not attended by a physician) deaths, so a suicide scene is like any other crime scene in terms of police search and seizure.
5.6.2008 11:38pm
Almijisti:


"Suicide . . . [is] a common law crime in Virginia as it [is] in a number of other common-law states." Wackwitz v. Roy, 244 Va. 60, 65 (Va. 1992).


I suppose anything might be a crime somewhere, but surely these states are exceptions.



I believe there are only six states that make suicide a crime (not counting "assisted" suicide, of course). Even there, it's not really prosecuted (obviously), but may have some relevance to insurance claims.

The Feds don't claim copyright to their own productions, as a matter of statute. State and local governments, however, may have copyrights; I know for a fact that many municipalities aggressively protect their copyrights, particularly to their web sites.

That said, I still think the analysis above is mostly incorrect. The suicide note is intended to be given to someone; whoever the intended recipient is should be declared the owner. The fact that 99.9% of the time, a recipient turns the note back to the family of the decedent has no impact on the question of whether the initial recipient is the initial owner.
5.6.2008 11:57pm
Jonathan F.:
Isn't the suicide note a case of abandonment, unless it is addressed to another?
I don't think so. Assuming it is left for someone to find, it seems more like an attempted donative transfer causa mortis. As I recall, that requires physical delivery, or else the item remains with the estate. But memories of 1L Property grow dim.
5.7.2008 12:16am
Dave Hardy (mail) (www):
When I was at Interior, someone wanted to publish a book of notes left at the Vietnam Memorial, to persons KIA. We advised them that we may have collected the notes, they might be available via FOIA, but the copyright was held by the authors.

As I recall, we had another question about grant recipients who had furnished us their creation, and the opinion was that most of them did not qualify as works for hire, ergo we had a license to use their material, but they still held the copyright.

In my own state (AZ), I think attempted suicide is some manner of offense, probably as a reason to take the person into custody, but completed suicide is not, probably because it's hard to make them comply with conditions of probation, and pleas are hard to negotiate.
5.7.2008 12:27am
whit:
"I would suggest that the importance of suicide being a crime is that that would typically give the government the right to seize the physical suicide note as evidence of a crime under its police power (which we talked about a day or two ago). It may be able to do so anyway, but I would think it to be much easier if a crime were involved."

not really. either way, it's a death investigation and the police are going to have pretty broad powers to seize evidence in a death investigation, at a minimum to rule OUT a crime.

in my jurisdiction suicide is not a crime, yet we routinely take all sorts of evidence.

i don't like the idea of suicide being treated (or at least attempt suicide) as a crime. making things crimes just so it would (in your opinion) "make it easier" to collect evidence is hardly just don't you think?

of course, if suicide was a crime, attempt would be a crime to, since attempt to commit any crime is a crime. do we want to treat suicide attempts as matters for CRIMINAL COURTS?

the proper venue is the civil side. where it is now
5.7.2008 5:40am
Bill Poser (mail) (www):
Suppose that the suicide leaves a note addressed to a specific individual? I would think that such a note should be considered a bequest to the addressee, but I don't know if it is.
5.7.2008 5:52am
Almijisti:

By delivering an original letter to another person, the author extinguishes any copyrights to that particular letter, (if I remember my copyright law well enough...Dr. Post?).


Huh? Why on earth would that be? I have always understood that the addressee of a letter owns only the physical copy, while the copyright remains with the writer.


Sorry; missed this post. I may be wrong, as I said; just don't remember and don't have access to materials here. You may be right on the copyright issue, but the physical letter belongs to the recipient. The same would hold true for the intended recipient of a suicide note.
5.7.2008 9:02am
Duffy Pratt (mail):
At common law, suicide was a felony. Thus, the note along with the rest of the estate would escheat to the crown.
5.7.2008 11:24am
Bruce Hayden (mail) (www):
At common law, suicide was a felony. Thus, the note along with the rest of the estate would escheat to the crown.
What, no due process?
5.7.2008 1:43pm
Bruce Hayden (mail) (www):
not really. either way, it's a death investigation and the police are going to have pretty broad powers to seize evidence in a death investigation, at a minimum to rule OUT a crime.

in my jurisdiction suicide is not a crime, yet we routinely take all sorts of evidence.
This is why it is good having Whit around. I was talking from theory, and he from the reality of having dealt with this throughout his career.
i don't like the idea of suicide being treated (or at least attempt suicide) as a crime. making things crimes just so it would (in your opinion) "make it easier" to collect evidence is hardly just don't you think?
If you will remember, my post was really before the suicide as crime was really discussed. I was operating under the assumption that it was a crime in most states, as it apparently was in the common law, and then trying to tie it to our discussion about seizure under police powers from last week.

But your point works just as well, that the state through its police powers can seize evidence at a death to rule out foul play. It mostly works out the same in the end, except that the heirs might get the note back more quickly under yours, since once that investigation is done, is is likely done. Maybe.
of course, if suicide was a crime, attempt would be a crime to, since attempt to commit any crime is a crime. do we want to treat suicide attempts as matters for CRIMINAL COURTS?
I too think it silly. Failed suicides are often crying out for help, and not jail time.

Your statement though that attempt would be a crime is not always true. In AZ, I lost twice at the Justice of the Peace level, and then won at the appeals level, pointing out that under AZ law, there were no inchoate traffic infractions. Attempting to speed just isn't actionable in that state (or, in my case, attempting to illegally exit the freeway).
the proper venue is the civil side. where it is now
Not sure what you mean here, unless you are suggesting that suicide shouldn't be a crime - which I suspect most of us would agree with.
5.7.2008 1:56pm
whit:
"If you will remember, my post was really before the suicide as crime was really discussed. I was operating under the assumption that it was a crime in most states, as it apparently was in the common law, and then trying to tie it to our discussion about seizure under police powers from last week. "

i was actually surprised to find out (in this very thread) that it is still a crime in some jurisdictions.

i also wonder if that is ever enforced (well, at least for attempted suicide).

many states have old laws on the books that are not enforced (and are often unconstitutional). Mass. used to (or maybe still does. it did when i lived there) have a law called "blaspheming the name of God". can't recall if it was a misdemeanor or felony.

"But your point works just as well, that the state through its police powers can seize evidence at a death to rule out foul play. "

sure. also, in my state in most (probably close to all) "apparent natural" deaths, no autopsy is done. i am not sure if it is legally mandated, but in every suicide i am aware of, an autopsy was done as well.

"It mostly works out the same in the end, except that the heirs might get the note back more quickly under yours, since once that investigation is done, is is likely done. Maybe."

i would guess its quicker with a non-criminal thang, on average. but that's just a guess

"Your statement though that attempt would be a crime is not always true. In AZ, I lost twice at the Justice of the Peace level, and then won at the appeals level, pointing out that under AZ law, there were no inchoate traffic infractions. Attempting to speed just isn't actionable in that state (or, in my case, attempting to illegally exit the freeway)."

that's irrelevant and doesn't disprove my point.

note what i said. i'll quote me --- "of course, if suicide was a crime, attempt would be a crime to, since attempt to commit any crime is a crime. do we want to treat suicide attempts as matters for CRIMINAL COURTS"

traffic INFRACTIONS are not crimes. they are infractions. infractions are civil. crimes are criminal. so, the fact that in your (and probably other) jurisdictions, there are no inchoate INFRACTIONS is completely irrelevant to my point. i referenced "if suicide was a CRIME". the infraction issue doens't apply.

in regards to your last comment, by "civil side" i was referring to the fact that there are still state CIVIL powers (such as civil commitment) that MAY apply in attempt suicide cases. even though it's not a crime, we can and do "involuntarily commit" (we being police officers) anybody we have reasonable cause to believe has made a bona fide attempt at suicide, or is actively suicidal to the extent they are a danger to themselves or thers.

that can involve handcuffing and reasonable force if the person "refuses to go", for instance. but it's not a criminal thang.
5.7.2008 2:12pm