When we think about estate planning and the property we want to pass on to our loved ones, the family home, 401K accounts, bank accounts, cars, jewelry, and other tangible personal property come to mind.
What we often don’t think about is intellectual property.
But if you are an artist, author, musician, or anyone else who owns intellectual property, you should understand the importance of copyright.
Estate Planning is Essential for Creatives
You should also be aware that it is essential that you plan out how you will both protect and pass on that property to your heirs.
Consulting with an experienced Florida probate lawyer is a good place to start.
Why is all of this something you should care about?
Because who should handle your copyrights and what should be done with them after your death is not always a clear-cut thing.
Let’s take writers for example. Writers need to figure out who will handle after their death such things as: negotiating contracts with publishers (if traditionally published), collecting and distributing royalties, arranging for the publication of unpublished manuscripts or other literary material, managing author websites, blogs, or social media accounts, and more. Not all spouses of writers are willing or able to do this. Many don’t really know what goes into the business of writing for a living and not all would be good at being a literary agent. And because your business is writing, thinking ahead about a succession plan for your business is critical.
The same thing applies to artists and musicians.
Artists need to consider who should manage their portfolio and whether there is someone they trust to complete any uncompleted works.
Musicians need to decide who will hold the right to their copyrights, who can sell their works, and who should get any royalties for both songs and recordings.
Your creative business may provide your entire present income. But it may account for future income as well. For example, your business may include not only current works, but digital assets —like Non-Fungible Tokens (“NFTs”) as well.
If your art —whatever form it takes—is your primary business, you will want to speak with an estate planning attorney and develop a succession plan for your business in the event of your incapacitation or death.
If you are an author, artist or musician, and own copyrights, you need to think about things like:
- Do your heirs want to continue to run your business?
- Do you want to sell your copyright if you die?
- Should you license your copyright?
… and more.
Remember, copyright lasts for a lifetime (i.e., the author’s, musician’s or artist’s) plus 70 years or in some cases, even longer. Which means that your copyright could outlive you—and even your heirs. Another good reason to plan ahead.
What is a Copyright?
What, exactly, is copyright?
Copyright is a form of intellectual property that gives the owner the exclusive right to copy, distribute, adapt, display, and perform a creative work.
Copyright for original works created after January 1, 1978, lasts for the creator’s (i.e., the author, musician, artist, photographer, etc.) lifetime plus 70 years. In some cases, it lasts for 95 years from publication, or 120 years from creation.
Termination Rights Cause Potential Estate Planning Problems
Copyright law protects a creator’s rights, but it also creates some difficulties when it comes to transferring those rights after death.
When it comes to art, no one can predict how valuable a work will ultimately be. So, in response to situations where artists sold their copyrights for far less than they were ultimately worth and then could not get those rights back, Section 203 of The 1976 Copyright Act (“Act”) grants a limited right to terminate existing copyright transfers and licenses so that the author can sign new contracts. At his or her death, however, the termination right is passed only to statutory heirs. That means that after the creator’s death, only his or her heirs can exercise the termination right. Because copyright termination rights cannot be transferred to a trust or by a Will, without careful planning, this can frustrate an owner’s estate planning wishes.
Because this is a complex and complicated area of law, if you have a copyright, you should consult with an estate planning attorney to learn more about the best estate plan for you.
Estate Planning Lawyers in Plantation, Florida
At the Law Offices of Samantha J. Fitzgerald, we work hard to ensure that your wishes will be followed, and your loved ones taken care of when you are gone. When you work with the estate planning attorneys at the Law Offices of Samantha J. Fitzgerald, you get more than just an estate plan: you get peace of mind. We expertly guide individuals through the complex probate process, and capably handle all aspects of the creation, administration, and settlement of trusts as well. Contact us here or email us at: [email protected]