What is Copyright
Copyright is a proprietary right in the expression of an idea. It is a form of non-physical property. Copyright can apply to a variety of things, including literary, dramatic, computer, musical or art works, performances and recordings. Generally, copyright lasts for the life of the creator and for 50 years following the year of their death. But once a creator dies, who protects, and benefits from, the copyright?
Who Benefits From a Creator’s Copyrights?
If the copyright-holder had a Will and gifted specific copyrights to specific individuals, those people would inherit those rights. If there was a Will but no specific mention of the copyright beneficiaries, the copyright would form part of the residue of the copyright-holder’s estate and would be dealt with according to the residue provisions of the Will.
If a copyright-holder had no Will, the intestacy laws of the copyright-holder’s jurisdiction determine who inherits the copyright. Surprisingly, several high-profile artists have died without Wills, leading, in many cases, to litigation and unanswered directions regarding their legacies.
Case Study: Prince
Prince, American pop legend and a prolific songwriter, died in 2016 at age 57 without a Will. As a result, there was a much publicized and protracted squabbling over his $156 million estate, which took six years to settle. As per the laws of intestacy in his jurisdiction (Minnesota), Prince’s estate was ultimately divided among his half-siblings, with a cool $3 million paid out to the trust company appointed to administer his estate, since he had no named executor.
Preparing a Will would have ensured that Prince’s copyrights devolved to the beneficiaries he intended. As well, preparing a Will would have more likely ensured that decisions about the uses of his copyright would be carried out in line with his wishes, because he would have appointed someone of his choosing to manage his affairs and could have left that person with instructions or a statement of wishes regarding the uses of his copyright.
Who Protects Copyright
The executor of an estate has authority to collect and distribute the assets of the deceased, and, absent any assignments of copyright, this includes authority to make legacy decisions as to copyright administration and enforcement. That said, an executor owes a fiduciary duty to the beneficiaries of an estate and should seek their approval of decisions.
Subsequent to the settling of Prince’s estate, an issue arose as to the use of his song “Nothing Compares To You”, written by Prince but most popularized by Sinead O’Connor. Her 1990 rendition became a worldwide hit and garnered three Grammy nominations including for record of the year. The makers of “Nothing Compares”, a 2022 documentary on O’Connor, sought to use the song but were denied by the heirs of Prince’s estate. Since he did not have a Will, and thus no named executor, or leave instructions about the usage of his copyright, we can never know if legacy decisions, including the potential distribution of posthumous works, will be made in accordance with his wishes.
Recommendations for Administering an Estate with Copyrights
Copyright-holders should prepare a Will, and during that process should give thought to the future uses of their copyright. Instructions may be added to a Will, or in a separate document for the executor, or may be discussed with the executor during the copyright-holder’s lifetime. When selecting an executor, consider if the copyright-holder has multiple copyrights, other complexities such as licenses/assignments, publishing or other agreements with third parties, and other intellectual property rights that will require ongoing management. In such cases, it may be preferable to designate a person with expertise in the industry or discipline to handle those aspects separate from the copyright-holder’s other estate affairs. This may be effected by designating a specific person as a “special trustee” in a Will to be responsible for dealing with the specified copyrights.
Another option is to prepare a separate Will for the copyrights (and other intellectual property if applicable), and then to name an appropriate executor for the separate Will. This separate will, called a Corporate Will or Secondary Will (or in some cases Tertiary Will) is not subject to probate, which will make the process of assuming the administration of copyrights easier and will preserve the privacy of those intellectual property rights. It will also, in the usual course, shield those assets from probate taxes, so, if for example, a copyright-holder incorporated a company to hold the copyrights and other assets, and at death there are retained earnings in the corporation from the payment of royalties or investments held by that corporation, there is no probate tax payable in respect of those assets.
It would be prudent to keep a record of all created works to help heirs and executors identify all the intellectual property to which they are entitled. It is useful to provide additional information such as the contact details for relevant publishers of a work or applicable affiliates such as collection societies that are collecting royalties on behalf of creators, for executors to notify appropriate parties when the administration of a copyright-holder’s estate commences.
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