This edition of Artworld Roundtable appears in collaboration with Chris Richards, the pop music critic for the Washington Post. Over the next several weeks, we’ll present a series of roundtable discussions based on Richards’ “five hardest questions in pop music”: “cultural appropriation, problematic lyricism, selling out, the ethics of posthumous listening, and … separating the art from the artist.” AFB has rounded up several thinkers working in these areas to see what they have to say about each question. Richards has provided AFB with key examples to draw out the problems and complexities of each debate. First was cultural appropriation. Up today is how to respect the wishes of dead artists.
If an artist opposes, say, her music being available on Spotify, should record companies respect her wishes after her death? If they don’t, what become our responsibilities as consumers? How should we respect the wishes of dead artists? Should we do so at all? Or does the question itself not make sense?
Whether we should listen to music against a dead artist’s wishes forms the second of “the five hardest questions in pop music”, as described recently in the Washington Post by pop music critic Chris Richards. Below is the guiding question accompanied by a few examples that Richards finds particularly salient, followed by our contributors’ responses.
Question #1: Should we listen to music against a dead artist’s wishes?
1) In 2014, Sony released Xscape, the second posthumous album by Michael Jackson. Obviously, Jackson was not present to oversee the release. In fact, these were new recordings, made with Jackson’s unfinished vocal outtakes. Should Sony have been allowed to sell this recording as Michael Jackson’s work?*
2) Prince spent much of his life loudly crusading against consolidating powers in the record industry. Now, after the pop superstar’s death in 2016, much of his catalog has been uploaded to Spotify, a streaming service that many critics believe will continue to destroy the livelihoods of countless musicians. How should listeners engage with Prince’s recordings?
3) The filmmaker Brett Morgen defended the public release and sale of the late Kurt Cobain’s private demo recordings in a 2015 interview with the New York Times as such: “If you came across a sketch of ‘Guernica’ by Picasso, is there anyone saying we shouldn’t see it?” What should listeners make of Morgen’s argument?
*New developments in this story have emerged since this question was sent out to our panel.
Our contributors are:
- Anthony Cross, lecturer in philosophy, Texas State University [website]
- Ashley Dressel, assistant professor of philosophy, College of St. Scholastica [website]
- Theodore Gracyk, professor of philosophy, Minnesota State University Moorhead [website]
- John Poland, musician and lecturer in philosophy, University of Wyoming
- James Stacey Taylor, associate professor of philosophy, The College of New Jersey [website]
When Michael Jackson’s posthumous album Xscape was released by Sony in 2014, his frequent collaborator Quincy Jones was not impressed: “They’re trying to make money. And I understand it. Everybody’s after money, the estate, the lawyers. It’s about money,” he told the CBC in an interview. The album was the result of a record-breaking $250 million deal in 2010 between Sony and the Jackson estate giving the label rights to publish up to 10 albums of Jackson’s unreleased work; following this deal, the label promptly released Michael in 2010—an album that, in addition to lackluster critical response, has been dogged by accusations that the vocal tracks on a number of the recording were faked. The label’s second posthumous release is an improvement; Xscape is pretty catchy, featuring a few moments of brilliance and more than enough material for a fan to love. Should we be happy that the album exists? Or is there something ethically problematic about what appears to be a blatant cash grab that Jackson himself may never have condoned?
We can look at the issue from a few different perspectives. From the perspective of a music appreciator, we can celebrate the fact that we’re able to hear work that might have otherwise languished in Jackson’s vaults or been scrapped entirely. From this perspective, we should be happy to have access to whatever posthumous works musicians leave behind, both because we can appreciate them in their own right and more importantly because they can enrich our experience of an artist’s existing published works.
From a legal perspective, there’s nothing wrong with the album either. The central legal concern here is copyright—that is, who has the legal authority to reproduce, distribute, and benefit from the artist’s work. At the time of Jackson’s death, authority over his intellectual property passed to the executors of his estate, who were entrusted with the job of using Jackson’s work—including his unreleased tracks—to benefit Jackson’s heirs. As it turns out, they’ve been incredibly financially successful, earning hundreds of millions of dollars for the estate. The multimillion dollar deal with Sony was a part of their success, and perfectly within their legal rights.
But isn’t there something ethically problematic about the estate’s actions? Perhaps. Let’s start with the idea that artists have moral rights with respect to their work. The basic thought is that an artist’s relationship with their work deserves respect over and above respect for copyright. Such respect involves a) properly attributing their work to them—the “right of attribution“; b) refraining from altering or mutilating it—the “right of integrity”; and c) respecting the artist’s determination whether or not the work is finished—the “right of disclosure.” Importantly, such rights apply independently of who owns the work or its copyright; even if you own a painting, you nevertheless have responsibilities to the artist who painted it to respect their moral rights. Moral rights were recently invoked in the controversy over the removal of the graffiti at 5Pointz; the artists alleged that the building’s owner violated their moral rights by destroying the graffiti—even though he owned the building it was painted on.
Why should we honor the moral rights of artists? The strongest case for protecting such rights is grounded in the close connection between an artist and their work; an artist’s works are extensions of the personhood of the artist. Although art has a life of its own—it can be bought and sold, distributed and performed—the work continues to express and perhaps even construct the artist’s identity. We should recognize and protect this important connection by properly attributing the work and by refraining from destroying, altering, or mutilating it against the artist’s wishes. Moral rights, much like copyright, extend beyond the death of the artist; the work’s connection to the artist’s personhood persists even if the artist has died.
Back to the legal perspective: The moral rights of musicians aren’t legally protected in the United States. In fact, US law had no legal protection whatsoever for the moral rights of artists until the passage of the Visual Artists Rights Act of 1990, which provides legal protection of visual artists’ rights to the integrity and proper attribution of their work. (Passage of this act was partly the result of the controversy surrounding the removal of Richard Serra’s Tilted Arc a year earlier.) This situation differs considerably from European and especially French law, in which the moral rights of all artists have long been legally protected. Recently, the US Copyright office has held hearings on extending legal protection to the moral rights of musicians—a move strongly favored by musicians and strongly opposed by the recording industry.
How would appreciation of the moral rights of musicians apply to the case of Xscape? First, note that there may be a tension between respecting Jackson’s moral rights as an artist and using his his intellectual property—including his unfinished work—for financial benefit. The estate stands to make more money if they release an album of “new Michael Jackson songs”, as opposed to a collection of unfinished material. However, doing so—especially if it involves attributing work to Jackson that is not his own, altering his unfinished work without his consent, or claiming that some songs are finished when Jackson did not claim that they were—would violate Jackson’s moral rights of attribution, integrity, and disclosure.
Given that moral rights aren’t encoded in the law, the estate isn’t legally required to be sensitive to these rights in any way. But from an ethical perspective, they ought to try to find a sensible balance that would respect Jackson’s moral rights, while still allowing his estate to benefit financially and allowing for our enjoyment of the unreleased tracks. What might this look like? For one, I think that Jackson’s estate ought to respect Jackson’s rights of attribution and disclosure by making it clearer that any unfinished works to be released are not ultimately attributable to Jackson as finished works. They might, for example, release the recordings as unfinished works, or as “remixes” of Jackson’s unfinished material. (For an interesting comparison, consider MassMoCA’s exhibition of unfinished sculptural installation by the artist Christoph Büchel against the artist’s wishes, which they clearly labeled as such.) Second, they might respect Jackson’s rights to integrity by restricting alteration or repurposing of completed works to make the work more marketable or up-to-date—as may have been the case with Timbaland’s “contemporized” versions of Jackson’s unreleased tracks.
What’s the more general conclusion for dealing with the unfinished work of dead artists? Often, there are compelling reasons for releasing work posthumously—including artistic appreciation as much as financial benefit. Even if there are such reasons, estates and recording labels need to be sensitive to an artist’s moral right to control their artistic identity. Artists do this in life by exercising control over what work to release and when to do so. They make use of their moral rights of disclosure and attribution. In the absence of explicit instructions, estates shouldn’t violate an artist’s say over what is—and what isn’t—their finished work. Posthumously-released work should be clearly marked as unfinished and not intended for publication in current form. It shouldn’t be altered, repackaged, and presented as completed work. Doing so might make a lot of money—as Quincy Jones would have it—but it’s hardly the right thing to do.
I’ll start with an admittedly controversial claim: there is no clear, compelling, reason to think we can harm the dead. If it’s wrong to listen to music against a dead artist’s wishes, it is because doing so harms the living. This may seem counterintuitive, or even irreverent. After all, many of us take a serious interest in what will happen to our bodies, property, reputations, and even social media legacies after we die. We make wills, consult estate planners, try to force loved ones to make reluctant promises (my husband regularly, though unsuccessfully, attempts to convince me that it will be my duty to get his screenplay produced if he dies). And we often care about what happens to the postmortem bodies, property, reputations, and legacies of our loved ones too. If I know my best friend wanted a simple, non-religious, funeral and her family plans an elaborate Eastern Orthodox one, it may feel like they are wronging her.
However, unless we commit to a very particular view of the afterlife, it is difficult to argue that anyone can harm (or otherwise wrong) the dead. The most obvious reason is what is sometimes called “the problem of the subject”: a person has to exist to be harmed and, well, it’s not clear that the dead do (or at least not in a traditional sense). While it may be possible to harm someone who doesn’t know they’re being harmed—say I destroy my husband’s screenplay while he’s in a coma—it seems less possible to harm someone who doesn’t exist.
Some philosophers try to avoid the problem of the subject by claiming that after a person has died, we can do things that reveal the person was harmed when they were still living. Say I’m in charge of Prince’s estate and I release his albums to streaming services, knowing how much he opposed them. In doing so, I make it the case that every time Prince tried to keep his work off of Spotify, he was doing something futile. Even though I don’t harm Prince here and now, I retroactively harm Prince when he was living.
I find this view deeply implausible for a number of reasons, not the least of which is that it seems to imply that most, if not all, present harms reveal that we were already harmed in the past. If you break up with me now, this reveals I was harmed the moment I formed an interest in your love (never mind that we had five good years before those two excruciating ones). Rather than make this stretch, I think it’s best to conclude that we can’t harm the dead.
If I’m right, then a question we often agonize over, i.e., whether this is what the artist would have wanted, is not all that important. And this a good thing. Human beings are notoriously complex. A 2014 Paste article written by two of Michael Jackson’s former bodyguards captures this well. Trying to decide what perfectionist Jackson would have thought about the postmortem release of Xscape, they waver. “If he were here and he listened to the album and he heard even one wrong note” they speculate, “he’d be furious… But if he saw young people in the club, dancing to this new single “Love Never Felt So Good”? That would have filled his heart with joy like you couldn’t imagine.” Even those closest to an artist can find it hard to predict exactly what the artist might have wanted after death.
A question we should ask is: If we choose to listen to music against an artist’s expressed or assumed wishes, could this negatively affect the living? Take Prince, for example, who worried streaming services like Spotify would destroy artists’ livelihoods. Now that his music is on Spotify, should fans use the service to listen to it? At least part of the answer to that question hinges on the answer to another question: Was Prince right? If so, does listening to his music on Spotify contribute to a culture that fails to properly compensate artists?
Or take Michael Jackson. A number of his friends and family members have opposed Sony’s release of posthumous albums. Putting aside debate over the Jackson family’s motives, their opposition can serve as a reminder that failure to respect a dead artist’s wishes can be painful to still-living loved ones. Many of us would dislike seeing a deceased loved one’s wishes disrespected, and so it’s worth considering how creating a market for an artist’s unsanctioned work will impact their loved ones, as well as whether it helps to create or uphold an undesirable precedent.
Further, while material like Kurt Cobain’s private demo recordings may be of real cultural significance, engaging with recordings against a dead artist’s assumed wishes may diminish the confidence living artists have that they can control their legacies. This, of course, isn’t necessarily bad—the vigor with which historians pry into every detail of the lives of past icons suggests that most attempts to control one’s legacy are futile in the long run anyhow. Further, we might think that living artists’ insecurities over the fates of their legacies can be outweighed by the cultural and social significance of unchecked access to a dead artist’s work, even if sometimes, all that access provides is a sobering reminder that our idols had off-days and “raw talent” takes honing.
The point is, however we ultimately answer questions like: ‘Should Sony be able to sell Xscape as Michael Jackson’s work?’, ‘Should listeners engage with Prince’s recordings on Spotify?’, and ‘How should we feel about consuming Kurt Cobain’s private demo recordings?’ our focus should be on what our answers mean for the living, not on what they would have meant for the dead.
Like many popular musicians before him, Michael Jackson left behind a treasure vault of recordings. By default, these recordings became the property of his legal heirs. They quickly approved the release of a disc of unreleased material (as “Michael,” in 2010), then followed up with a more radical project, 2014’s Xscape. Here, the vocals were digitally peeled off from Jackson’s original tracks and then superimposed over backing tracks created by contemporary hit producers, most notably Timbaland. There’s a long history of such product: Buddy Holly and Jimi Hendrix both received the same posthumous treatment.
On aesthetic grounds, narrowly construed, the doctored Xscape is considerably better than the undoctored “Michael.” Matthew Perpetua has noted that Xscape succeeds because it flies in the face of what Jackson would have wanted.
Setting this aesthetic judgment to one side, Chris Richards has raised two distinct issues about posthumous tinkering with the legacy of musicians: (1) To the extent that we can determine them, should we respect an artist’s wishes upon their death? (2) And if we should, then should the method of commodification be included as a relevant limitation on posthumous releases? In his article, Richards maintains that the artist’s wishes should be respected, and that commodification should not take forms that the artist did not, or probably would not, sanction. The implication is that neither the 2010 nor the 2014 Jackson releases should have taken place, since Jackson clearly decided that his finished tracks were not good enough to release. On the other hand, he didn’t destroy what he’d recorded.
However, there’s nothing about the commodification of the Jackson legacy that seems problematic here. After all, Jackson made marketing history in 1983 for charging five million dollars to change the words to “Billie Jean” in order to sell Pepsi soda: “Guzzle down … and feel the Pepsi way!” So, on second thought, perhaps Jackson would have had no problem with the reconfiguration of his music on Xscape.
To see the point of the second question, Richards makes the case that the commodification issue is a genuine problem with another recent pop star death. Prince would have objected to posthumous commodification in the form of music streaming, yet some of his unreleased music will soon be available that way. Richards offers his gut response as evidence: Richards would “feel gross” about listening to any posthumous music that came to him in a way that Prince wouldn’t “wish” to have seen. But what informs his response?
The relevant precedent is that Prince withdrew his music from all streaming services that failed to pay him when listeners accessed his music. (Only one streaming service, Tidal, was licensed to carry any of Prince’s music at the time of his death.) Richards claims that the “ugliness” of “money changing hands” led Prince to prefer the sales of his music on CD to access through digital downloads and streaming services. However, Prince’s deal with Tidal shows that he was not opposed to a commodified, “transactional” relationship to his fans. What Prince found ugly were transactions that fattened the middle man instead of funneling the bulk of the money to his bank account. I’m pretty sure that Prince wanted me to send him a check when I bought a couple of his used albums at a garage sale, but Prince’s wishes don’t create any special obligations for acquiring his music in the context of the modern music business.
Prince was admirable for standing up to streaming that does not fairly compensate musicians, but the negative effects of the Internet revolution are merely the latest (and arguably the most pernicious) step in a long history of ripping off musicians. No, Elvis Presley did not co-write a series of songs with Otis Blackwell. Blackwell complained that Presley’s management wouldn’t record Blackwell’s songs unless he gave Presley a share of his songwriting royalties. And Presley is hardly alone in claiming songwriting royalties that he’s done nothing to deserve. I’m not condoning these practices, but if Richards wants to adjust his listening habits out of a concern that the streaming services are an unfair transaction, he ought to do the same for every other musician he admires. If Richards wants to take a stand against the “gross” and unjust business side of music, there’s plenty of other great music that he should be equally worried about. The obvious point is that each listener will have to wrestle with her or his own conscience.
Perhaps Richards is saying that some truly great musicians are a special case: Michael Jackson and Prince merit our concern in a way that doesn’t hold in the case of, say, Milli Vanilli or the Backstreet Boys. However, conceding that Jackson and Prince were truly great is not a compelling reason to honor their wishes. Some of the greatest classical composers were clear about their intentions when they wrote specific opera roles for a male castrato (a singer castrated before puberty, preserving a high, clear, prepubescent singing voice: adult men who sang like the Vienna Boys Choir). Because that barbaric practice has been abolished, today’s performances of those operas requires us to go against the composers’ wishes about proper performance of their music. Yet that is no reason to stop performing all the operas in which composers wished castrati to appear. I am fairly confident that Edvard Munch would not sanction the irreverent memes that appropriate his angst-filled image The Scream. Yet I don’t see that as a good reason not to share those memes. I am also confident that Richard Wagner would not approve of the new Bayreuth Festival staging of “Lohengrin,” which challenges Wagner’s patriarchal viewpoint with a feminist reinterpretation. The fact that Richards cares a great deal about Jackson and Prince might influence him to be especially respectful of their presumed wishes, as he interprets them, but that’s no reason why anyone else should be any more respectful of Prince’s wishes than we are in the cases of equally great artists such as George Frideric Handel, Munch, and Wagner.
Setting aside any plausible scenarios where Sony might have been compelled (legally?) or strongly urged (prudentially?) to release these recordings as Michael Jackson’s work and sticking with a sense of ‘allowed’ meaning morally permissible, my immediate intuition is that Sony should not be allowed, because it is morally impermissible, to market and sell Xscape as Jackson’s work.
This intuition doesn’t seem tied to any sense of harm that is done to Jackson (e.g., posthumous harm) by releasing the album under his name. I’ll have a little more to say on that later, though. My first thought is that it just seems like a case of fraud. To put the point briefly, it seems like fraud because the finished product seems less like the work of Jackson and more like the work of the stable of industry professionals who reworked, to one degree or another, the unreleased and/or unfinished tracks from earlier recording sessions and made new pieces for public consumption—with Jackson’s voice a part of the new pieces. The fraud might not be egregious. To appropriate a distinction from my Catholic school days, it might be a venial rather than mortal transgression. It might be the case that by simply renaming the release as something that just “features Michael Jackson” as a contributing artist is a permissible way to sell the work. Or at least would avoid the impermissibility brought on by fraudulently marketing it as a new Michael Jackson release.
However, there are certainly complexities I’m overlooking in making a claim that Sony seems to be defrauding its consumers by selling Xscape as Jackson’s work. For example, the albums that Jackson released while he was alive were likely the product of a team of professionals. Those professionals help not only with the technical aspects of playing and recording and mixing the music, but also in composing and arranging the songs in the first place. Maybe we should view “Michael Jackson” as something more akin to a brand name, where the authors of the work are many and the credit gets distributed among the team members. On this model, a team member (Jackson himself, for example) may exit the group, and in doing so leave behind some of their work. In that case, so long as it is done in the right spirit, the rest of the team may use that raw work to compose a new product to sell under the brand. If we understand Xscape this way, then maybe we can ignore the charge that Sony is selling us musical snake oil.
In fact, this seems to be how the executors of Jackson’s estate want us to view the new project. John Branca and John McClain suggest that honoring Jackson’s legacy went into artistic decisions regarding the album. In a 2014 press release about the album, they are quoted as saying, “Michael was always on the cutting edge and was constantly reaching out to new producers, looking for new sounds. He was always relevant and current. These tracks, in many ways, capture that spirit.”
So, perhaps my initial response is inappropriate. Maybe the team of folks who put together the Xscape project did it in the spirit of continuing Jackson’s art, and I happen to find it objectionable because it strikes me as merely distasteful. Maybe it wasn’t just a big, industry giant money grab that marketed their product in a morally questionable way. Is it possible that selling this collection of songs as Jackson’s work is morally impermissible for another reason? Perhaps because it causes harm, posthumously, to Jackson himself? Some critics might be read as gesturing at this idea. For example, Michael Arceneaux argues that this project sounds “like a recipe for legacy tarnishing.” Nekesa Mumbi Moody claims that releasing music that “falls below Jackson’s standards detracts from the carefully constructed catalog he spent decades creating and protecting.” And Michael Cragg writes that “these were songs that Jackson, ever the perfectionist, didn’t finish for good reason.”
Tarnishing a legacy, detracting from a carefully constructed catalog, and ignoring the implication that these songs failed to meet Jackson’s personal standard: these all go beyond the claim that Sony acted distastefully. They seem to claim rather that Sony caused harm to Jackson by pursuing this project, even though he was no longer alive. This sort of harm, as other contributors have noted, is often called posthumous harm. The existence of posthumous harms seems plausible if we think that harm generally has something to do with a person’s interests being blocked, thwarted, or somehow impeded. So, Jackson might have had an interest in only putting out only hits, having a catalog of work he is proud to say are his songs or having a legacy of a certain sort. If any of these were his interests at the time he died, then those interests can be thwarted by the release of an album like Xscape. If those interests are so thwarted, then a harm is done to Jackson by releasing Xscape as his work and Sony should not be allowed to release it as such.
At the risk of attacking a straw man, I think that such harms can be avoided by simply renaming the release and not including it in Jackson’s official catalog. Give it an * or something to denote that it is not (fully) Jackson’s work.
But maybe the harm runs deeper and can’t be alleviated that way. In that case, I am of at least two minds on the subject. In my less cynical moods, I can appreciate that posthumous harm gives us a deeper, perhaps more robust reason for opposing actions like this from record companies like Sony. Whether or not they are defrauding consumers becomes irrelevant and the opposition stands on grounds that they are harming artists. In my more cynical moods (and I’m always a little cynical lately), I can see it as a harm, but be indifferent to such harms. Having the interests listed above thwarted (or even a general interest to only make good work) might be genuine harms, but they seem analogous to stubbing a toe. Not much lasting damage is done and Jackson’s interests remain mostly intact. Apologists are afforded every opportunity to argue that we shouldn’t take this release (and the others to come?) very seriously. But if you walk around the world, you might stub your toe. If you make a career in the music industry, you might be posthumously harmed. Buyer beware.
James Stacey Taylor
In 2014 Sony released Xscape, an album that had been made in part with the late Michael Jackson’s unfinished vocal outtakes that were used without his consent. By contrast, in 2015 Universal Music Chairman and CEO David Joseph destroyed Amy Winehouse’s demo tapes so that they could never be used to make an album that would be released under her name.
Which course of action was right? Joseph claimed that destroying Winehouse’s tapes was the moral thing to do. But he’s wrong. Since Winehouse is dead releasing her unfinished material could not have harmed her, even if she would have opposed this while she was alive. And since some people would enjoy listening to her demo tapes—even if they were not her best work—their destruction cost them the pleasure of hearing them. On balance, then, Joseph’s act has made the world a worse place—unlike Sony’s release of Xscape which has made the world better.
My conclusion here is based on the view that a person cannot be harmed once she is dead. But many philosophers think that this is false—they think that people can be harmed by events that occur after their deaths. The most persuasive argument for this view has been developed by Joel Feinberg and George Pitcher. They note that it is plausible to think that a person could be harmed by an event that she does not experience if its occurrence would set back her interests. (For example, a person could be harmed by being watched in the shower by a Peeping Tom even if she never found out about this since this voyeurism would thwart her interest in privacy.) If a person could be harmed by something that thwarts her interests even if she never experiences it then, they claim, she could also be harmed by something that occurs after her death if this would set back her interests. So, if Michael Jackson and Amy Winehouse had interests in not having their unfinished work released to the public doing so would have harmed them. It would not matter if this setback occurred while they were alive or after they were dead.
But while this argument is persuasive it faces a problem. We normally think of harm being caused. For example, when you’re harmed by a bee sting, the bee sting causes the harm. But since causation moves forwards the cause of a harm must occur before the harm is inflicted. However, if people can be harmed by events that occur after their deaths then they would be harmed before the harmful events occurred. That would mean that causation would flow backwards in time. And that’s bizarre.
Feinberg and Pitcher have a clever response to this—although one that I think is wrong. They note that sometimes events that occur after a person’s death can change her status in life. For example, if a man’s daughter gives birth he will become a grandfather, and this will be true even if he dies shortly before his grandchild is born. So, they claim, since there is nothing mysterious about a person becoming a grandfather as a result of an event that occurs after his death, then there is nothing mysterious about a person being harmed by an event that occurs after his death. So, both Michael Jackson and Amy Winehouse could be harmed by the posthumous release of their demo recordings if this would go against the interests that they had while alive.
But while this is an ingenious response to the “problem of backwards causation” it is mistaken. It is clear that a person does not have to exist to become a grandfather; one just is a grandfather if one’s child had a child. But it is not clear that a person can be harmed by an event that occurs when she does not exist. There is thus a disanalogy between a person’s becoming a grandfather and a person’s being harmed that undermines Feinberg and Pitcher’s response to the problem of backwards causation. But not only do Feinberg and Pitcher give us no good reason to think that the dead can be harmed, there is good reason to reject their view as it has absurd implications. Imagine that when I was five years old I wanted to attend a The Wiggles concert for my fortieth birthday. But when I’m forty I no longer have any interest in The Wiggles. However, my failure to attend one of their concerts to celebrate my birthday would thwart the interest that I had when I was five. On the Feinberg-Pitcher view, then, I would have harmed my five-year-old self by failing to attend. And if we have reasons to avoid harm then my past interest in The Wiggles would give me a reason to attend one of their concerts when I was forty. But this is absurd. And since it’s an implication of the Feinberg-Pitcher argument we have reason to reject their view that posthumous harm is possible.
Let’s return to the question of whether we should listen to music against a dead artist’s wishes. Since we have reason to think that we cannot harm a person after he’s died the use of Michael Jackson’s vocal outtakes after his death couldn’t harm him. However, their use clearly benefited a lot of people—Xscape sold over 450,000 copies by January 2015, many of whom took a great deal of pleasure in listening to it. Since Jackson was not harmed by Xscape and many were benefited, releasing it was the right thing to do. By contrast, David Joseph’s destruction of Amy Winehouse’s unfinished work was wrong. It dd not protect Winehouse from harm—as the dead cannot be harmed—and it prevented many people from enjoying her work. So, not only should we listen to music against a dead artist’s wishes, record labels might even have a moral duty to facilitate this.