Why wills matter for artists
December 12, 2017 | Resale Royalty
In Australia, copyright and the Resale Royalty Right in most cases lasts for 70 years after an artist’s date of death.
This means that having a will is imperative for artists to ensure your intellectual property is passed on according to your wishes, and to assist your beneficiaries in effectively managing, and benefiting from, these ongoing rights into the future.
If you are drafting a will, or assisting an artist to do so, it is important to be aware that the Australian resale royalty scheme has some unique requirements. Beneficiaries must currently satisfy an Australian residency test to be eligible, which for individuals means holding Australian citizenship or permanent residency in Australia.
Should you intend to leave your Resale Right to an organisation, it must be either an Australian charity or charitable institution or an Australian community body to qualify. Other types of organisations are ineligible to receive the Resale Royalty Right on the death of an artist.
Be mindful too that if you do not specify in your will who is entitled to inherit your copyright or your Resale Royalty Right, those rights will form part of what is known as the ‘residue’ of your estate and be passed on to the beneficiaries of the residue.
As the collecting society appointed by the Australian Government to administer the Resale Royalty scheme, Copyright Agency assists beneficiaries in registering for their entitlements. In the case where an artist has left a will, we follow the instructions of the artist as per the will. Where there is no will, the rules of intestacy apply. These rules are found in the relevant legislation of States and Territories and they may vary across Australia.
If you are the beneficiary of an artist, an executor, an administrator or a trustee, you can register by completing the Registration Form for Artists’ Beneficiaries online or phoning us to discuss the requirements and request the necessary paperwork. The Arts Law Centre of Australia also provides some assistance to Indigenous artists and art centres in drafting wills and registering for Resale Royalty.
Further detail is available online in our Information for Beneficiaries sheet. As this is intended for guidance purposes only, it is advisable to seek legal advice or professional assistance in drafting wills and in establishing your potential entitlement to an artist’s copyright and/or Resale Right.
With broad expertise in rights management, Copyright Agency is also well placed to assist beneficiaries and agents with managing the copyright for artists’ estates. Find out more about Visual Arts Licensing for Beneficiaries.