Tapestry and Legacy: Estate Plans and Copyright

By December 21, 2017 January 7th, 2018 Blog, Estate Planning

Most people are generally familiar with the term ‘copyright’. It affords authors of original works including: literary, dramatic, musical, and other intellectual property, legal protection from activities like copying. But what happens with the work, and the copyright that protects it from illicit copying, when we “shuffle off this mortal coil?” The answer lies in careful planning and knowledge.

Copyrights are governed by federal law. Namely, the Copyright Act of 1976. A copyright is created simultaneously with the creation of an original work at the moment of creation. Many people are surprised to learn that they no longer need to register with the government to hold a copyright. Section 412 of the Act states that an individual who registers a copyright within three (3) months after the date of first publication- or with unpublished works within one (1) month of the first infringement- may be entitled to statutory damages and attorney’s fees when suing for infringement. Thus, registration is often advised.

Under the act, generally, an original work is protected for the life of the author plus seventy (70) years. After this time, there is no renewal period and copyrighted materials enter the public domain. When the copyright enters the public domain, anyone can use the rights without obtaining permission. However, the life of the author plus 70 years provides a lengthy term of protection that can span generations. Authors of famous books have a vested interest in protecting their copyright in their work and may want to make sure the work can provide future revenue for their heirs.

Copyrights are a ‘bundle of property rights’ granted to the author including but not limited to: reproduction rights, distribution rights, derivative work rights, and display rights. The copyright is separable from the physical work itself. A person can own the copyright in a literary work without owning the work itself. For example, Heir A may receive the original manuscript of a famous book and Heir B may receive the copyright that protects that work. A more common example would be that you own a physical copy of your favorite book but you do not own the copyright in that book. You are not afforded the rights that come with the copyright because the copyright is held by the author. This creates a number of avenues for decedents when considering the distribution of intellectual property in their estate plan.

If a decedent wishes to transfer a copyright and the work itself to a singular heir, the decedent may want the last will and testament documents to address the copyright specifically. If the copyright is not addressed, the decedent runs a few risks. One notable risk is that another heir may receive the copyright via the residuary clause. For example, Decedent wishes to pass his copy of a famous work he wrote and the copyright in that work to his eldest son, Heir A. Assume Decedent has 2 children, Heir A and Heir B, and no other living family. If Decedent states in his last will and testament that his copy of his famous work is to pass to Heir A and the rest of his estate is to pass to Heir B, there is a significant chance that Heir B will claim he owns the copyright in the famous work because Decedent only passed his physical copy of his work to Heir A and not the intellectual property rights.

Therefore, forced heirship under the statutory regime may produce unintended consequences. In addition, planners and decedents should be aware that the statute shows a preference from transfers made only by last will and testament. The statute makes no exceptions on termination rights for will-substitutes, such as a revocable trust. As a result, the statute creates an inherent bias in favor of classic testamentary instruments rather than the modernly popular contractual ones. The importance of being aware of the statutory regime as well as options for succession cannot be overstated so as to effectuate the legacy artists and authors wish to leave in the hands of family.

If you have questions about copyright, handling your estate plan, or the intersection of both, call us at Hewson & Van Hellemont to discuss your options.

Austin Probst

About Austin Probst

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