For authors, artists, photographers, composers, and other creative professionals, copyrights can be an important part of a personal, artistic, and financial legacy. Estate planning for copyrighted works requires consideration of both their economic value and the creator’s long-term vision.
Copyrights Can Last Long After the Creator’s Lifetime
Copyrights are unusual among intellectual property rights in that their duration is tied to their creators’ lifespans and can extend long after their deaths. For works created after January 1, 1978, copyright protection generally lasts for the life of the author plus 70 years. As a result, heirs may inherit royalties and licensing rights, as well as responsibility for managing the creator’s body of work for decades.
Include Copyrights in Your Estate Plan
A well-prepared estate plan can identify copyrighted works, specify who should receive them, and clarify who has authority to make decisions about licensing, publication, digitization, or donation. Copyright ownership can also be separated from ownership of the physical property. For example, a painting may be left to one person while the copyright in that painting is left to another.
Without specific direction in estate planning documents, copyright ownership may pass under applicable inheritance rules, which may not align with the creator’s wishes. Maintaining organized records of copyright registrations, publication dates, and ownership history can be important, as these records may affect the future value and administration of the works.
Plan for Copyright Termination Rights
Estate planning for copyright owners should also address potential termination rights. In some circumstances, authors or certain heirs or representatives may terminate prior assignments or licenses, including those made to publishers, and reclaim the transferred rights. These termination rights are subject to detailed eligibility and notice requirements, as well as limited timing windows.
Tracking prior assignments, licenses, publication dates, and related contracts can help identify potential termination rights and clarify who may be entitled to exercise them.
Consider a Literary or Artistic Trust
For artists whose work may gain recognition after their death, or creators who plan to donate their archives or collections to libraries, museums, or other institutions, a literary or artistic trust may be appropriate. These trusts can be structured to hold and manage copyright interests, receive royalties, and carry out the creator’s long-term wishes for the work.
Include Digital Assets in Copyright Planning
Modern copyright portfolios may include valuable digital assets, such as websites, social media accounts, online storefronts, cloud-based archives, royalty collection accounts, and monetized content channels. Estate plans should account for these digital assets and provide fiduciaries with appropriate authority to access and manage them alongside the underlying copyrights.
Address Moral Rights and the Future of Creative Works
Financial considerations are only one part of the planning for creative works. Moral rights can include rights related to attribution and, in some circumstances, the revision, alteration, or distortion of a work. U.S. law provides limited moral rights protections, primarily for certain visual artists.
Estate planning can provide an opportunity to articulate wishes regarding attribution, modification, or destruction of creative works. These provisions can help guide future stewards and preserve the creator’s vision for the work.
Consider Copyright Ownership and Contractual Rights
Copyright ownership can become complicated when works involve collaborations, employment relationships, or prior publishing agreements. Contracts and other agreements may affect who owns the copyright and what rights can be transferred or inherited.
Creative professionals should work with qualified legal and tax advisors to ensure their estate plans accurately reflect copyright ownership and their long-term goals for their creative legacy.
For assistance with estate planning for copyrights and other intellectual property, contact your Varnum attorney or a member of Varnum’s Estate Planning or Intellectual Property Practice Teams.
