Inheriting the copyright

From The Legal Genealogist:

The Legal Genealogist trusts that — by now — readers understand that copyright lasts for some time after the death of the person who created the work: the book; the photo; the painting.

Around the world, the minimum time generally is 50 years after the death of the creator. In the United States, it’s generally 70 years after the death of the creator.

What may not be as well understood is who owns the copyright at that point — and how that person comes to own it.

That’s clear from reader questions, like the one that came in yesterday: “In order to claim inheritance of a photo or collection of photos, does one have to explicitly have that inheritance stated in a will? For example, my dad passed away in 2019, and my sister and I were the sole beneficiaries of his will. He left us instructions on where the digital photos were stored and passed on boxes of physical photos…but they are not explicitly mentioned in his will. Do we own the copyright to his photos now?”

Here’s the bottom line: a copyright is just another piece of personal property, like somebody’s car or desk. The only difference is that the car or desk is tangible personal property; a copyright and other intellectual property is intangible personal property. But ownership passes to the deceased person’s heirs just the way that car or desk does.

And as genealogists we should know how property passes to the heirs: by testate succession (when there is a will) or by intestate succession (if there isn’t one). The Copyright Office makes it clear that works with copyrights as well: “You can bequeath a copyright by will or pass it along as personal property under applicable state laws of intestate succession.”

. . . .

In any given case, we start with determining if the copyright owner left a will. If he or she did, then:

• Does the will mention copyrights specifically or intellectual property generally? If so, that provision controls.

• If the will doesn’t mention copyrights, does it mention personal property generally? If so, that provision controls, but there’s a potential hitch here: the provision can’t be limited to tangible personal property.

• If the will doesn’t mention copyrights, or its personal property provision is limited to tangible property, then does the will have a residuary clause (“and all the rest and residue of my estate I leave to…”)? If so, that provision controls.

If the deceased copyright owner didn’t leave a will or if there is absolutely nothing in the will that covers personal property at all, then:

• What state’s law controls how any personal property would be distributed to descendants?

• What does that state’s law say about who’s entitled to inherit personal property?

• Who was alive when the copyright owner died who would have been included in that group?

• Who is alive today who might have a claim to any part of the copyright owner’s personal property?

Link to the rest at The Legal Genealogist and thanks to C. for the tip.

PG says the bottom line for your copyrights and everything else you own is that your heirs will be very grateful to you if you have a will.

While he is not an expert on the laws of inheritance in nations other than the United States, he can say with some assurance that in any country whose laws are derived from the British Common Law and British legal traditions, following this advice is probably a good idea.

As mentioned in the OP, the inheritance laws of each state are somewhat different, but a properly drawn will in one state will almost certainly work about the same way in another.

Inheritance tax laws vary from state to state. Generally, the term “estate tax” refers to the tax imposed by the United States government on larger estates. The term “inheritance tax” refers to taxes imposed by the state where the person is living when they die.

As a general proposition, settling the affairs of a deceased person will be much more simple if that person has a will.

It is an excellent idea for you to hire a competent attorney to draft a will for you. A great many interesting court cases revolve around a will written by the decedent without legal assistance. Another group of interesting court cases is centered on a will drafted by an attorney to which the decedent (or maybe someone else) made handwritten changes.

Where a will is not correctly drafted, and any meaningful amount of money is involved, litigation may ensue.

PG will spare you the details of a war story, but long ago and far away, he managed to resolve litigation over the meaning of a will that had been ongoing for 16 years.

The decedent with an estate of considerable size had a will drafted by a local attorney, which she signed in the manner the law required. She then went on a cross-country trip to visit the significant number of individuals named in the will. She took the original will with her.

While on the trip, she made many handwritten changes to her will, crossing out words, handwriting (in pencil) notes and names and property descriptions with arrows going here and there.

After returning from her trip, the decedent died before she could take her marked-up will back to her attorney so he could make a new one. There was some question whether any of her local heirs might have had access to the will before it was filed with the Probate Court.

Suppose an individual or couple wish to have a will drafted that basically divides the property they own at death between a relatively small number of people or leaves it to a charitable organization. In that case, a lot of different attorneys can do that job without charging very much money.

If an individual or couple have property (including intangible property like copyrights to books) that is worth more than a few hundred thousand dollars, a qualified estate planning attorney may be able to help reduce the estate and inheritance taxes due to state and federal governments by for a legal fee that is significantly less than the amount of taxes due.

PG has been purposely vague in this discussion because, as mentioned, laws vary from state to state and there are factors that may impact probate and death taxes that may be unique to an individual or couple and impact what’s involved for the heirs after their deaths.

It is not unusual (and perfectly justified) that more than a few people may be concerned about what the attorney will charge for her/his services.

It is not at all impolite for you to make an appointment for a meeting with an attorney or, at the beginning of the meeting, to ask in a friendly manner how much the attorney will charge for a meeting to discuss your estate and, on a broad level, what death taxes are may be involved, again in round numbers.

During the meeting, if the attorney recommends that wills, trusts, etc., be drafted or redrafted, it is not impolite for you to ask what the costs will be for the attorney’s services in doing so if the attorney doesn’t include that information in the discussion with you.

It is possible that the attorney may legitimately not know or be able to estimate costs ahead of time due to matters that may arise only after he/she gets started. Quite often, she/he may be able to give you a general range in which your bill will fall.

If you don’t feel good about your meeting with the attorney, you can be assured there are others who perform the same services.

PG says the bottom line for your copyrights and everything else you own is
that your heirs will be very grateful to you if you have a will.

While he is not an expert on the laws of inheritance in nations other than
the United States, he can say with some assurance that in any country whose
laws are derived from the British Common Law and British legal traditions,
following this advice is probably a good idea.

As mentioned in the OP, the inheritance laws of each state are somewhat
different, but a properly drawn will in one state will almost certainly work
about the same way in another.

Inheritance tax laws vary from state to state. Generally, the term
“estate tax” refers to the tax imposed by the United States
government on larger estates. The term “inheritance tax” refers to
taxes imposed by the state where the person is living when they die.

As a general proposition, settling the affairs of a deceased person will be
much more simple if that person has a will.

It is an excellent idea for you to hire a competent attorney to draft a will
for you. A great many interesting court cases revolve around a will written by
the decedent without legal assistance. Another group of interesting court cases
is centered on a will drafted by an attorney to which the decedent (or maybe
someone else) made handwritten changes.

Where a will is not correctly drafted, and any meaningful amount of money is
involved, litigation may ensue.

PG will spare you the details of a war story, but long ago and far away, he
managed to resolve litigation over the meaning of a will that had been ongoing
for 16 years.

The decedent with an estate of considerable size had a will drafted by a
local attorney, which she signed in the manner the law required. She then went
on a cross-country trip to visit the significant number of individuals named in
the will. She took the original will with her.

While on the trip, she made many handwritten changes to her will, crossing
out words, handwriting (in pencil) notes and names and property descriptions
with arrows going here and there.

After returning from her trip, the decedent died before she could take her
marked-up will back to her attorney so he could make a new one. There was some
question whether any of her local heirs might have had access to the will
before it was filed with the Probate Court.

Suppose an individual or couple wish to have a will drafted that basically
divides the property they own at death between a relatively small number of
people or leaves it to a charitable organization. In that case, a lot of
different attorneys can do that job without charging very much money.

If an individual or couple have property (including intangible property like
copyrights to books) that is worth more than a few hundred thousand dollars, a
qualified estate planning attorney may be able to help reduce the estate and
inheritance taxes due to state and federal governments by for a legal fee that
is significantly less than the amount of taxes due.

PG has been purposely vague in this discussion because, as mentioned, laws
vary from state to state and there are factors that may impact probate and
death taxes that may be unique to an individual or couple and impact what’s
involved for the heirs after their deaths.

It is not unusual (and perfectly justified) that more than a few people may
be concerned about what the attorney will charge for her/his services.

It is not at all impolite for you to make an appointment for a meeting with
an attorney or, at the beginning of the meeting, to ask in a friendly manner
how much the attorney will charge for a meeting to discuss your estate and, on
a broad level, what death taxes are may be involved, again in round numbers.

During the meeting, if the attorney recommends that wills, trusts, etc., be
drafted or redrafted, it is not impolite for you to ask what the costs will be
for the attorney’s services in doing so if the attorney doesn’t include that
information in the discussion with you.

It is possible that the attorney may legitimately not know or be able to
estimate costs ahead of time due to matters that may arise only after he/she
gets started. Quite often, she/he may be able to give you a general range in
which your bill will fall.

If you don’t feel good about your meeting with the attorney, you can be
assured there are others who perform the same services.

 

 

 

 

PG says the bottom line for your copyrights and everything else you own is
that your heirs will be very grateful to you if you have a will.

While he is not an expert on the laws of inheritance in nations other than
the United States, he can say with some assurance that in any country whose
laws are derived from the British Common Law and British legal traditions,
following this advice is probably a good idea.

As mentioned in the OP, the inheritance laws of each state are somewhat
different, but a properly drawn will in one state will almost certainly work
about the same way in another.

Inheritance tax laws vary from state to state. Generally, the term
“estate tax” refers to the tax imposed by the United States
government on larger estates. The term “inheritance tax” refers to
taxes imposed by the state where the person is living when they die.

As a general proposition, settling the affairs of a deceased person will be
much more simple if that person has a will.

It is an excellent idea for you to hire a competent attorney to draft a will
for you. A great many interesting court cases revolve around a will written by
the decedent without legal assistance. Another group of interesting court cases
is centered on a will drafted by an attorney to which the decedent (or maybe
someone else) made handwritten changes.

Where a will is not correctly drafted, and any meaningful amount of money is
involved, litigation may ensue.

PG will spare you the details of a war story, but long ago and far away, he
managed to resolve litigation over the meaning of a will that had been ongoing
for 16 years.

The decedent with an estate of considerable size had a will drafted by a
local attorney, which she signed in the manner the law required. She then went
on a cross-country trip to visit the significant number of individuals named in
the will. She took the original will with her.

While on the trip, she made many handwritten changes to her will, crossing
out words, handwriting (in pencil) notes and names and property descriptions
with arrows going here and there.

After returning from her trip, the decedent died before she could take her
marked-up will back to her attorney so he could make a new one. There was some
question whether any of her local heirs might have had access to the will
before it was filed with the Probate Court.

Suppose an individual or couple wish to have a will drafted that basically
divides the property they own at death between a relatively small number of
people or leaves it to a charitable organization. In that case, a lot of
different attorneys can do that job without charging very much money.

If an individual or couple have property (including intangible property like
copyrights to books) that is worth more than a few hundred thousand dollars, a
qualified estate planning attorney may be able to help reduce the estate and
inheritance taxes due to state and federal governments by for a legal fee that
is significantly less than the amount of taxes due.

PG has been purposely vague in this discussion because, as mentioned, laws
vary from state to state and there are factors that may impact probate and
death taxes that may be unique to an individual or couple and impact what’s
involved for the heirs after their deaths.

It is not unusual (and perfectly justified) that more than a few people may
be concerned about what the attorney will charge for her/his services.

It is not at all impolite for you to make an appointment for a meeting with
an attorney or, at the beginning of the meeting, to ask in a friendly manner
how much the attorney will charge for a meeting to discuss your estate and, on
a broad level, what death taxes are may be involved, again in round numbers.

During the meeting, if the attorney recommends that wills, trusts, etc., be
drafted or redrafted, it is not impolite for you to ask what the costs will be
for the attorney’s services in doing so if the attorney doesn’t include that
information in the discussion with you.

It is possible that the attorney may legitimately not know or be able to
estimate costs ahead of time due to matters that may arise only after he/she
gets started. Quite often, she/he may be able to give you a general range in
which your bill will fall.

If you don’t feel good about your meeting with the attorney, you can be
assured there are others who perform the same services.

 

4 thoughts on “Inheriting the copyright”

  1. I’m going to grouchily be slightly — only very slightly — contrarian on this.

    One aspect of copyright is ordinarily not devisible by will (or via trust or other estate-planning device): The termination/revocation right, § 304(c) (pre-1978 initial transfers of the work in question) and § 203 (first transfer on/after 01 Jan 1978… and notice that it’s the date of the transfer, not the date of creation, that matters). Just don’t get me started on how that’s screwed up routinely by stiffs-and-gifts attorneys — even talented ones, who are aware of the term of copyright. And now throw in improper work-for-hire agreements and their relationship to both termination/revocation rights and devisibility in the first instance regardless of termination/revocation.

    Or a prior divorce (search for “tom clancy copyright termination” — and that’s a relatively easy one). Or a post-making-of-the-estate-plan change in marital status. The subtext of the story PG told about the travelling testator (sounds almost like a Perry Mason episode title, doesn’t it?) is that circumstances change, and the estate plan needs to reflect current circumstances.

    My ultimate point is that the stiffs-and-gifts bar (with its built-in treatment of taxes as the greatest possible damage to an estate)… may not get it right in the first place, and can’t get it right if things change but nobody tells the lawyer.

  2. “any country whose laws are derived from the British Common Law and British legal traditions”

    To nit-pick, you mean English Common Law. Scottish law is a different tradition, never entirely combined with English. Welsh law was abolished in 1536, the Welsh not being invited to share an opinion on the subject, with English law taking force. Then there is Northern Ireland: best not to ask, unless you really need to know.

  3. Should you care enough about what happens after your death to want to help your heirs (and any friend/relative you’ve conned into being your executor) then PG is right to insist on the need for a will, and that this be drafted by someone who knows what they are doing. However, even when the will is simple, straightforward and lacking in any ambiguity you also need to keep your financial affairs and records in good enough order to enable the executor to do their job, or the quality of your will may still leave a nightmare (I speak from bitter and ongoing experience). In the UK even, if you think your records are fine and your affairs uncomplicated you may still be surprised by the Inland Revenue’s desire to account for every payment from your bank account over the seven years prior to your death as they look at possible taxable gifts. The executor often finds it hard to say what the large credit card payment five years ago was for or what happened to the big seven year old cash withdrawal.

    PG, I was surprised that all those amendments to the will in your example mattered. Did she actually sign the amended version and have it witnessed? IANAL but I believe that in England, and I think most other common law countries, the last signed and (properly) witnessed will (or more specifically the text of the will at the time it was witnessed) is the only one that matters. The plot of one or more Agatha Christie novels depends on this (the murder before the will is signed trope).

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