Estate planning for copyright owners

August 30, 2019 | Author

This story, first published last year, is reproduced by popular demand.

Could it be possible that the Will had set things right at last, and that Richard and Ada were going to be rich? It seemed too good to be true. Alas, it was!

“Mr Kenge,” said Allan, appearing enlightened all in a moment. “…Do I understand that the whole estate is found to have been absorbed in costs?” “I believe so,” said Mr Vholes. “And that thus the suit lapses and melts away?” (Bleak House, Charles Dickens)

If you own property, you should have a will to ensure that property is passed to your loved ones and not to unintended beneficiaries. Wills frequently contain specific bequests of personal property, such as jewellery, furnishings and artworks but copyright, an equally valuable property, is often overlooked.

If you are an author or artist, it is particularly crucial for you  to consider copyright when planning what will happen to your property after your death. Copyright in literary and artistic works, such as novels, plays, poems, illustrations, photos and artworks, owned by you at the time of your death, is personal property that can be bequeathed under a will. Copyright confers both control over how and by whom works are used. It may provide an income stream from royalties when work is licensed, and from collective licence schemes such as the educational and government licences administered by the Copyright Agency.

Copyright in works will generally last for 70 years after your death. The rules of duration mean that after death there is a long period of time during which the beneficiaries of your copyright can control the use of works created by you and can continue to benefit from publishing contracts and other licensing arrangements for the use of the works.

When preparing a will it is important to think about who will be best placed to administer and benefit from your copyright once your estate is distributed by your executor. If there is more than one such person – several children for example – then you should consider how they will work together. In addition to appointing a general executor to administer your estate, you might also want to consider appointing a literary or artistic executor to act in an ongoing capacity – someone who has some knowledge about how to handle matters related to your works, including the management of your copyright.

Copyright will generally last for 70 years after your death.

What happens to your copyright if you do not deal specifically with it in your will?

It becomes part of what is known as the “residue” of your estate, along with any other property that is not specifically bequeathed, and your executor will distribute it to the beneficiaries of that residue.

Although you can write a will yourself – a will written on an egg shell and another on a wall have been found to be valid – you should seek advice from an expert. You should ensure your will is properly drafted and executed, appoints appropriate executors, takes into account all relevant issues, including payment of debts and liabilities and taxation, and is not likely to be subject to challenge. Challenges most often arise from family members who feel they have not been adequately provided for. Like the unfortunate Jarndyce v Jarndyce case of Bleak House fame, reputedly based on real life cases, a legal challenge can end up costing close to the value of the estate being contested.

What happens to your copyright if you don’t leave a will?

Dying without a will means you are considered “intestate”. Each State and Territory in Australia has laws that deal with succession whether under a will or intestacy. These laws set out the rules dictating who will inherit on an intestacy. Starting from next of kin, such as a spouse, property may go to children, parents, siblings or nieces and nephews. The consequence of an intestacy may be that your copyright goes to people that you do not want to receive it. It can also make it difficult to manage if copyright ends up being owned by several people. Once those people die, their share of the copyright will be passed on to their own beneficiaries under a will or intestacy, meaning even more people could end up owning the copyright.

Beneficiaries, whether under a will or intestacy, will take the copyright subject to any licences that have been granted during your lifetime. Similarly, Copyright Agency’s licence to manage copyright and collect licence fees continues after the death of an author or visual arts member, however, we will contact beneficiaries to obtain copies of relevant documentation such as wills, probate of wills and bank details, and invite them to sign up as a member.

For further information please see this Legal Aid NSW fact sheet.

You might also like to read about setting up an optimum Copyright Notice on Your Website.

This article does not constitute legal advice and we recommend you obtain your own advice about estate planning matters. 

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