Copyright- Inheritance Consideration
Written by Thomas Mould on 10 May 2016« Return to Reading Room
Copyright – Death of the Author
When individuals make a will, they are forced to consider what items they would like to leave to their love ones, these are normally tangible assets such as their house, car and heirlooms, what is generally not considered is their intangible assets like their intellectual property.
Many celebrated musicians, actors and TV stars have died recently. The estate administration is generally complex with several properties, high value investment portfolios and business interests to sort out, often with an international element involving assets located in various different jurisdictions, and possibly several ex-spouses, cohabitants and children. The difficult part is working out what intellectual property they owned, work out its valuation and who is the new owner.
Not just celebrities should consider intellectual property in their wills– the ease with which writing, music, films, photographs, design, blogs and vlogs can be published now means more clients may have to consider what’s going to happen with copyrights that they own on their death. Even if this is not generating a large income, it could be that there’s someone who the author would trust to have control of their works.
Copyright exists for 70 years after the end of the year in which the author dies for literary, dramatic, musical or artistic works, 50 years for sound recordings; for films it is 70 years and depends on who is the last to die of the principal director, the screenplay author, the dialogue author and the composer of music written for and used in the film. This longevity can cause headaches in itself. If royalties received are modest and diminishing over time, the cost of ongoing administration can outweigh the benefit, even more so if the royalties are being divided amongst several beneficiaries.
On a practical level, this means that estate administration files are kept open for a long time, with executors still under a duty to fulfil their obligations. It may be that there is a mix of published and unpublished works, and it’s worth thinking about appointing specific ‘literary executors’ who would be authorised to take possession of works, enter into negotiations and contracts for publication, or, indeed, contract with other authors to finish any incomplete works. Make sure that the will clearly specifies who is to receive the profits, whether these are to go to a specific person or into a trust.
Copyrights can be dealt with as specific legacies in your will and it’s important to make sure that everything is included – either by carefully listing all the copyrights that the legacy covers or by drafting it very broadly so as to cover everything. Make sure that any other legacies in the will do not have unintended consequences. If there is a general legacy including personal possessions, think about what that might include. Personal computers, laptops, tablets and smartphones might all contain copyright works, so be careful when drafting a will that the copyrights are separated from the physical possessions if need be.
Copyright is as important to consider in life as it is in death and those who create copyright works should ensure that their creation is adequately protected for the duration that their rights in the work exist.
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