If you’ve thought about planning your estate you’ve likely considered who you want your house or your mother’s engagement ring to go to, but have you thought about protecting your intellectual property? If you have created art, made music, or wrote a book in your lifetime it is important to consider the future of those artistic endeavors as well. Not only should you leave that piece of self-created art in a will or a trust, but you should also include its copyright in your estate planning documents to ensure your wishes are respected posthumously.
What is a copyright?
In the United States, copyrights are governed by the Copyright Act of 1976 which grants copyright holders the exclusive right to reproduce, prepare derivative works, distribute copies, and publicly perform and display the copyrighted works. If a piece of art was created after January 1, 1978, the copyright automatically vests with the author, granting them the exclusive legal right to print, publish, perform, film or record literary, artistic, or musical material, and to authorize others to do the same. However, even though those rights vest automatically upon the creation of the work it is still important to register your copyright.
Why should I register my copyright?
A copyright protects you and any original work you create. If you plan or hope to profit off of your art, you should register for a copyright. Failing to do so could allow others to copy your work and make a profit themselves. Once you obtain a copyright you have exclusive control over your work and any of its derivatives or reproductions. Registering a copyright allows you to bring a claim in federal court if the copyright is infringed and the certification of that copyright is prima facie evidence of its validity.
Why do I need to include my copyright in my estate planning?
While it is important to protect your copyright during your lifetime it is also important to consider what will happen to it once you pass. Including your copyright in a trust or a will allows you to maintain control over your work posthumously and prevent potential disputes among heirs.
In most states a piece of art and its copyright are treated as separate properties. If a copyright is not specifically mentioned in your will or trust it will be dispersed to your heirs by means of a residuary clause, which is a clause that disposes of property not specifically mentioned elsewhere in your will. This could complicate the dispersal of your assets, leaving a painting with one heir and the copyright with another.
Should I include my copyright in a trust or a will?
Most practitioners advise including your copyright in a trust rather than in a will. If you were to include your copyright in a will it will have to go through the probate process which can be quite expensive. Probate can also be very time consuming whereas including your copyright in a trust would likely be a more efficient way to distribute assets to your heirs. Additionally, wills are public documents which means once they go through probate there is no longer any privacy concerning those assets.
It is important to note that in the United States there are copyright laws in place that grant statutory heirs specific termination rights that have the potential to undo any transfers made to a trust during the author’s lifetime. If a copyright was transferred after 1978 an author or their heirs can terminate the transfer during a five-year period commencing thirty-five years after the copyright was transferred, these rights apply only to transfers made by the author and the author’s heirs. However, even if the termination rights are exercised, the original author and their heirs retain the ability to regrant those rights.
In conclusion, taking the time to include your copyright in your estate planning ensures that art created during your lifetime is protected and that your wishes are respected even after you pass.
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