Whether you are a musician, writer or artist engaged in creative endeavors, copyrighting your original works and identifying them within your estate plan is the only way to protect intergenerational ownership and income derived from use of your work product.  While the average person does not need to worry about registering copyrights, structuring license agreements and collecting royalty payments, these concerns must be addressed for persons whose estates are comprised primarily of copyrighted assets.  If an artist dies intestate without identifying copyrighted works within a Last Will or Trust, administration of their estate will be ripe for exploitation by family members with no long-term plan to sustain the artist’s legacy or strangers motivated solely by profit without concern for upholding the artist’s legacy.

The fact is, while all artists will eventually leave the Earth, their intellectual property assets will live on forever.  Any copyrighted works they create will provide value to the economy and generate an income stream well after the artist’s life.  The failure to implement a Last Will or Trust with framework for managing and profiting from use of copyrights from one generation to the next will strain family member relationships, deplete potential inheritance paid to surviving family members and invite legal fees and financial waste as part of the probate that will be required to gain control and direct use of the artist’s copyrighted works.

Which Original Works Are Protected by Copyright Law? 

Copyrights are a form of intellectual property law that protects original works of authorship including literary, dramatic, musical, and artistic works.  The most common copyrights protect written compositions, novels, poetry, sound recordings, video productions, architecture designs, and computer software designs.  These commonly copyrighted works have significant commercial value in the public marketplace and allow the creators of those works to use and financially benefit from public consumption of their work during life and after death.  

What Exactly Does Copyright Laws Protect? 

Copyright laws give artists federal legal protection of their literary and artistic creations or rights related to those copyrighted works.  This includes legal copyright protection for novels, screenplays, films, poems, plays, newspapers, advertisements, computer programs, sound recordings, musical compositions, choreography, paintings, drawings, photographs, sculpture, architecture, maps, technical drawings, sound recordings, public performances or broadcast communications or other translation or adaptations of those works.  The owners and future beneficiaries of these copyrighted works have the exclusive right to use or authorize others to use the work on agreed terms or prohibit use of use of the same.  If properly planned for, the owner or beneficiary of copyrighted works can sell or license creative work to third parties who can better market, develop, reproduce and distribute the works in exchange for compensation or royalty payment.

What Legal Rights Do Owners of Copyrighted Works Have?

The artist or creator (author) of copyrighted works is usually the person who creates the copyrightable expression and fixes it in a tangible medium.  The author of the copyright of an original work has six (6) exclusive rights for the lifetime of the author plus seventy (70) years after their death, namely:

1. The right to reproduce and make copies of an original work;
2. The right to prepare derivative works based on the original work;
3. The right to distribute copies to the public by sale or another form of transfer, such as rental or lending;
4. The right to publicly perform the work;
5. The right to publicly display the work, and
6. The right to perform sound recordings of the work publicly through digital audio transmission.

When any of these rights are infringed with regard to an original work of authorship, the holder of the rights may bring a copyright lawsuit, i.e. including civil action suits, administrative remedies and criminal prosecution, to enforce those rights.  However, where original works of authorship are “works for hire”, the copyrighted works is deemed created within the scope of employment and employer of the author is considered the owner of the copyright and the six exclusive rights mentioned above.

Which Creatives Must Plan to Protect Copyrighted Works?

Most copyrights are owned by authors, recording artists, performers, songwriters, composers, producers, broadcasters, publishers, visual and graphic artists, sculptors and other content creators.  While not every copyright that is created has monetary value, most copyrights have the potential to make money for their owners for a surprisingly long time.  The advent of the Internet and digital copying has lowered the barriers to produce, store, market and distribute copyrighted content has also made it necessary for creatives to plan for the long-term ownership, preservation and use of valuable copyrighted works.

Are Copyrighted Works Transferable During Life? 

With certain exceptions, copyrighted works are treated like any other intangible asset that can be jointly owned, devised by Last Will, conveyed to Trust or otherwise transferred by its owner during life or at death.  In addition to disclosing IP assets to their estate planning attorney, artists should work with their attorney to do a comprehensive review of any license agreements restricting the use or transferability of IP during the artist’s lifetime or after death.

Can Copyrighted Works Be Protected Posthumously? 

Generally speaking, if an artist that die without a Last Will, state laws of intestacy will dictate who receives ownership and royalty income from use of the artists copyrighted works.  For this reason, if an artist wishes to direct the use and benefit of copyrighted works to go to their spouse, children or other beneficiaries at time of their death, they must prepare a Last Will or other appropriate estate planning documentation to set for their wishes for who may receive the right, title and interest in original written or musical works including the right of public performance and right to reproduce copies of the original work.  That being said, because of the unique needs of the estates, e.g. of songwriters, composers and music publishers, third party payors may allow the sale or irrevocable assignment of a deceased artist’s right to receive royalties after death to a family trust or family limited partnership in certain cases.

Can Royalty Income Earned After Death from Use of Copyrighted Works Be Protected?

By assigning intellectual property assets, i.e. such as patents, trademarks and copyrights, into a living trust or testamentary trust born from a Last Will, any royalty income generated from the use of intellectual property including copyrighted works will become owned by a trust that will centralize management of copyrighted works, dictate the plan for generating royalty income from license of those works and create a roadmap for families to navigate any control and tax compliance issues. A trust will also help keep family beneficiary owners’ names and trust asset information private and free from public scrutiny.

Where and How Do Creatives Register Their Copyrighted Music? 

The first step to getting paid public performance royalties is making sound recordings are properly registered with either ASCAP, BMI or SESAC, i.e. the major Performing Rights Organizations (PRO’s)  that collect publishing royalties for their member’s performance of musical works in public spaces.  The PRO’s license, collect and distribute public performance royalties for songwriters and publishers and make sure their members get paid.  At the time of registration with the PRO’s (who will register the artist’s copyrighted work with the U.S. Copyright Office), the list of information needed for application for copyright registration includes:

• the title and nature of the musical work;
• the date that the work was created and, if it was published, the date of first publication;
• the author, publisher and royalty percentage splits for the musical work;
• the full name and nationality of the author, together with a statement of the author’s understanding that the work is not a “work made for hire” created within the scope of an employment contract; and
• whether the work was adapted or derived from a preexisting work, and if so, what preexisting work.