Do you consider yourself a creator? While it’s not the most fun to think about, you’ll need to start thinking about what will happen to your life’s work when you eventually pass away. If you’ve spent your life putting your blood, sweat, and tears into your calling, then you have an incentive to protect your copyright after death. Not only will taking these steps ensure the protection of your work after you pass away, it can help provide prolonged support for your loved ones in your absence. This guide will introduce copyright law and go over some tips on how to protect your work and transfer copyright to your heirs.
What is copyright?
According to the U.S. Copyright Office, copyright protects an author’s original works by making them intellectual property. These works, however, must be expressed in a tangible format.
Examples of works protected by copyright law include:
Architectural drawings and works
Copyright protection after death how long after death does copyright last?
The U.S. Copyright Act of 1976 established a fifty-year protection that kicks in after a creator passes away. In 1998, there was an amendment made (the Copyright Term Extension Act) that extended this protection period to 70 years.
As of today, any copyright-eligible works that were created in 1978 or after are protected for 70 years from the date of death of their creator. This is also applicable to any joint works. In this case, the protection period applies to the longest-living co-creator.
If you made a creation under a pseudonym (pen name), for-hire, or anonymously, then the rules are little different. Instead, the protection lasts 95 years from the date the work was published, or 120 years from the date of creation, whichever date comes first.
Can heirs inherit copyright after death?
Similar to any other type of property you own, copyright can also transfer to your heirs. In the absence of a Will, state law will dictate the specific individuals who will inherit your copyrights. In most states, the first person is your spouse. Then, children or other family members are next-of-kin.
If you wish to designate a specific person who you wish to inherit your creative works, it is essential to create an Estate Plan. You can transfer ownership of copyright using a Last Will and Testament by designating a beneficiary. Alternatively, you can bequeath copyright to a beneficiary through a Trust. The latter option is beneficial if you wish to keep your copyright private and transfer ownership directly to a loved one outside of the probate process.
The world-renowned singer Prince serves as a cautionary tale of what can happen if you pass away without an Estate Plan. At the time of his passing in 2016, Prince left behind an estate worth $156 million, but with no Will to be found. As a singer, songwriter, and performing artist, much of his estate was made up of copyrighted works, such as the songs “1999” and “Purple Rain.” (Especially since Prince took a particularly protective stance on his music.) Because he died intestate with no Estate Plan detailing who should inherit his copyright, it took 6 long years before his heirs finally settled on an estate agreement.
Copyrighted works are often licensed out or transferred to another individual or entity during the owner’s lifetime. For example, an author can license their publishing house to publish, market, distribute, and sell their book. A singer can do the same with a record label. If the artist passes away, the license or transfer isn’t automatically invalidated. The license holder typically retains the rights that were granted to them until their agreement or copyright term expires.
Use of copyright after death
Once the copyright ownership is legally transferred to a new owner after death, they typically have the freedom to use and license the work(s) as they see fit. In cases where copyrights have joint ownership, any profits generated from the use of the copyrights are divided amongst all of the owners. Typically, the co-owners do not have to sign off if one of the owners wishes to use the work non-exclusively.
If you want to make sure that your copyright is used in a specific way after you pass away, an Estate Plan should be used. You can leave instructions in your Will or Trust to ensure that your wishes are honored. The late Adam Yauch of the Beastie Boys, who passed at the age of 47, provides us with an example of this. In a copy of his Will obtained by Rolling Stone, Yauch specified that none of his music or artistic property should be used for advertising purposes.
Protect your copyright with an estate plan
This guide provided an overview of what can happen to copyright after death, including how long the copyright lasts and who can inherit your life’s work. As a creator, this information should be helpful in figuring out how to take action.
First, we suggest creating an inventory of any copyrighted works you own. Then, you can divide your inventory into separate categories: works with copyright registrations and those without. Here, you may want to evaluate whether or not you’d like to register any works that aren’t formally copyrighted and registered through the U.S. Copyright Office to better protect them. Further, this gives you and your heirs or beneficiaries the right to sue for infringement and potentially receive damages and fees.
Next, decide what should happen to your copyrights after you pass away. Who do you wish to receive any future profits from your works? Who do you trust to protect your life’s legacy? Are there any pending or current licensing or transfers of ownership to take into consideration?
Once you know what you want to happen to your copyright, it’s time to turn your ideas into reality. This is done by creating an Estate Plan, such as leaving provisions in a Will as well as a Trust. That way, you can achieve peace of mind knowing that your life’s passions won’t be doled out based on state laws by default, and that you have a say over what happens.
Last but not least, it’s recommended to have conversations about your Estate Plan and your copyrights with your loved ones. Be sure that your wishes don’t take them by surprise after death. By having these crucial conversations beforehand, you can make sure that they are aware, are on board, and are up to the job of protecting your legacy. It will also give you the opportunity to discuss the specifics of how you’d like them to manage your life’s work.
Get the best estate planning support
As an artist or creator, your copyrighted works are an important part of your legacy. While facing your mortality can understandably be uncomfortable, it’s nevertheless critical to consider what will happen to your copyright after death.
Per U.S. Copyright law, in most instances, your copyrighted works are protected for 70 years from the date of your passing. This is a good amount of time that will provide protection for your children, if not for your grandchildren as well. If any of your creations aren’t officially registered with the U.S. Copyright Office, you may want to consider doing so for legal protection.
To ensure that the ownership of your copyright will transfer to your desired person or persons after you pass away, you are highly encouraged to set up an Estate Plan. If you pass away without a Will (intestate), then state law will determine who will inherit your copyright. However, by letting your wishes be known through your Will or Trust, you can designate any individual or entity you wish. In other words, an Estate Plan is the only method of making sure the profits rendered from your works will wind up in the right hands.
To set up an Estate Plan, all you have to do is take Trust & Will’s quiz. It will help determine the type of Estate Plan that will work best for your unique needs and circumstances. Further, our Will and Trust-based Estate Plans can be completed online from the comfort of your home! Be sure to check out Trust & Will’s Probate as well, which helps individuals like you navigate the probate process with confidence.
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