A Last Will and Testament is, of course, important to make sure that after you pass away your assets are distributed according to your wishes. But an important and often overlooked element of a proper estate plan is identifying those assets in the first place. When it comes to intellectual property – copyrights, trademarks, patents, trade secrets – knowing just what you own and the best way to protect those assets for your heirs requires an extra level of planning.
Here in Nashville (Music City, U.S.A.), clients have often written and/or recorded songs. Maybe they have value now, or maybe they could have value in the future. Either way, protecting that asset is an important consideration.
One of the most important steps is to be aware of which, if any, rights associated with your copyright may have been transferred to another individual or company, and which have been fully retained. A copyright is not like other property you may own, like your furniture, the contents of your bank account, or your home. A copyright is in fact a collection of rights – including the right to copy, perform publicly, and license – subject to certain deadlines, and provisions of federal law. Even if you have transferred certain rights related to your copyright ownership, you may have retained others.
And it’s not just artists themselves who may own an interest in copyrights, but also their heirs. Under federal law, the duration of a copyright in a original work created and fixed on or after January 1, 1978 is for the life of the author *plus 70 years after.* That means that not only do songwriters, for example, need to account for their copyrights in their estate plan, but their heirs, who stand to own those rights for many years after the songwriter’s death, need to account for them as well. If your parent or grandparent owned copyrights in their own work, you may be entitled to claim an interest after they pass away.
Whether to assign your copyright interests through a will, or to handle them in a living trust, is another consideration a Tennessee estate planning attorney can help you navigate. Be aware that it makes a difference! If you use your will to transfer your copyright interest, for example, federal law does not consider that bequest to be subject to “termination rights.” A termination right affords an original copyright owner, or certain of their heirs, a window of time in which to terminate that transfer and reclaim copyright ownership. If your copyright is distributed my other means, including by the terms of a living trust, however, that transfer may still be subject to the termination rights of your children or grandchildren.
Lastly, another essential planning step in protecting those rights is to make sure your work is registered with the U.S. Copyright Office. Copyright registration allows the owner to enforce that copyright and receive statutory damages and attorney’s fees in the case of an infringement.
A proper estate plan should take great care and purpose in handling your copyrights. Whether you have written or recorded music, authored a book or play, created a visual work of art, or even created an original work of choreography, you should be aware of what will happen to any royalties associated with those works after you have passed away.
Please contact us today online or by calling 800.705.2121 to discuss your legal options.