The news of the recent resolution of the Aretha Franklin estate is a high profile, and expensive, lesson in how not to manage copyrights in an estate. At least there was what the Court found to be her will, unlike the six yearlong court fight that resolved last year in the Prince estate. You may think that this is only an issue for celebrities, but, with the ease of producing, generating, and creating materials, such as blog posts, YouTube videos, music, art, photographs or eBooks, more and more people are now owners of copyrights. These copyrights should be considered assets and an integral part of the client’s estate. Such planning includes the management and distribution of copyright assets after the copyright owner passes away. Proper estate planning can ensure the protection and transfer of copyright ownership, as well as provide for the financial well-being of heirs and beneficiaries.
Here are some important considerations for estate planning related to copyrights:
- Identify and Inventory your Copyrights: Begin by creating a comprehensive list of all the copyrights you own. This should include written works, musical compositions, photographs, artwork[1] you created, software code, and any other original works of authorship that you own that are protected by copyright. You should also list all contractual relationships, like licensing agreements, administration agreements, buy-sell agreements and be certain to include any online agreements (production music, stock photographs) you may have entered regarding your copyrighted works.
- Choose Beneficiaries and Successors: Decide who should inherit your copyrights after your death. It can be one or more individuals, such as family members, friends, or charitable organizations. Additionally, identify any successor owners who will manage the copyrights on behalf of the beneficiaries. Under certain circumstances, copyright assignments and licenses that were entered into on, or after, January 1, 1978, can be terminated during or after your lifetime.
- Consult an Attorney: It’s advisable to consult an experienced intellectual property attorney who specializes in estate planning. They can guide you through the legal complexities and help you to create a comprehensive plan that aligns with your goals and objectives.
- Create a Will or Trust: A will or a trust ensures that your instructions regarding the distribution of your assets, including copyrights is honored. Designating a trust to manage and distribute your copyrights has additional benefits, such as avoiding probate and maintaining privacy.
- Consider Licensing Agreements: If you derive income from licensing your copyrights, consider including provisions for the management and continuation of these licensing agreements in your estate plan. This will ensure that your beneficiaries can continue to benefit from the ongoing licensing revenue.
- Consider Creating a Publishing Company or Appointing a Literary Executor or other copyright administrator: A publishing company may allow you greater control of your musical copyrights, as well as allowing you to enter co-publishing agreements, thereby affording you the opportunity realize a portion of the music publisher’s share of the income. This of course is a function of the bargaining strength of the parties. It also allows you to simplify the ownership of multiple copyrights and record keeping, as well as extending the productivity of these assets beyond your lifetime.
- Provide Guidance on Copyright Usage: You may want to leave instructions on how your copyrights should be used or managed after your death. For example, you can specify whether your works can be modified, reproduced, or licensed by others; or, if they should be kept intact for historical purposes. You may also want to place limitations on the use of those copyrights (e.g., no use in political ads or ads for tobacco products, etc.).
- Register Your Copyrights: While copyright protection automatically exists upon creation, it’s beneficial to register your copyrights with the U.S. Copyright Office. Registration may be done online and provides stronger legal protection especially if done in a timely fashion (within 3 months of publication or before any infringement occurs), this may entitle the copyright holder to recover legal fees and statutory damages. Registration is also a prerequisite to filing an infringement claim.
- Communicate Your Wishes: It’s essential to communicate your estate plan and your intentions regarding your copyrights to your family members, beneficiaries and trusted advisors. This will help prevent misunderstandings and ensure that your wishes are carried out effectively.
- Review and Update Regularly: Regularly review and update your estate plan to reflect any changes in your copyright ownership or personal circumstances. Life events like the acquisition or sale of copyrights, changes in beneficiaries, or shifts in your financial situation may necessitate revisions to your plan.
Remember the specific requirements and considerations may vary depending on your jurisdiction and the specific type of copyrights you are dealing with. Consulting with an attorney who specializes in both intellectual property and estate planning is crucial to developing a tailored plan that meets your needs.
I would like to thank Michael C. Lesser Esq, for his help and expertise in Intellectual Property law in preparing this article.
[1] Generally, the copyright in a work of art is held by the artist or the artist’s estate unless specifically licensed by the artist. The Robert Indiana Estate is an example of how complicated an artist’s estate can become when copyrights are licensed
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