April 22nd, 2013

Who Inherits Your Copyrights?

Susan Spann returns to Writers in the Storm with a new series to help you think about planning for the long-range future of your estate. In this series she’ll give us practical, easy-to-follow suggestions about protecting your intellectual property.

by Susan Spann

In the spring, a young man’s fancy may lightly turn to thoughts of love, but (with apologies to Tennyson) this spring my guest posts here at Writers in the Storm will take a slightly more serious tone.

It’s time to face the reaper – or, more specifically, what happens to your copyrights (and other intellectual property) when you’re gone.

And I don’t mean on a book tour.

Intellectual property rights – including copyrights – survive their creators. Under U.S. law, copyright lasts for the life of the author plus 70 years (and copyright term is the same for unpublished works as it is for published ones).

Every author needs an estate plan, including a properly drafted will or trust, which addresses and disposes of copyrights and other intellectual property owned at the time of the author’s death.

Most authors give plenty of thought to managing copyrights during their lifetimes, but little or none to what happens … after.

This spring, we’ll take an in-depth look at creating an estate plan that handles the “who, what, when, and how” of managing your copyrights after your death.

The estate planning process, for authors, contains four separate steps. In the months to come, we’ll look at each one in depth and give you the tools you need to create and implement a plan that works for you.

Step 1 Create an estate plan. You can do this yourself or hire an attorney, but a good estate plan generally requires either a will or a trust. Many states allow handwritten wills – called holographic wills – and next month’s installment of this series will talk about the differences between the various options.

Step 2: Make sure the estate plan includes specific references to administration of your copyrighted works. The language may vary (and we’ll look at specific examples to help you draft it), but you need a provision bequeathing all of your intellectual property rights (“including without limitation all copyrights and copyrighted works”) to the person you want to own those rights after your death.

You can grant the rights as a unit or split them up. The choice is yours. Just remember: anything you don’t deal with specifically usually passes by operation of law to the person who receives the “residuary” or remainder of your estate. Confused? Don’t worry. We’ll take a look at what that means and explain the legalese.

Step 3: Include language authorizing your executor (or trustee) to execute any necessary assignments of rights to ensure your heirs have documented rights to control your copyrights. Although the law of most states grants executors this right by default, it’s easier (and faster) if your estate plan is specific on this point. Again, don’t worry if this sounds confusing now – it won’t be by the time this series ends.

Step 4: Assemble a list of all your copyrighted works and contact information for publishers, agents, etc. You may know who published your novels, or where they’re currently offered for sale, but your heirs won’t necessarily know. In many cases, they won’t even know where to look for that information. Makes lists of all your copyrights and important contacts, and keep those lists with your will or trust.

And remember: If you have no written estate plan, the law creates one for you – whether you know it or not. Don’t let the government control who gets your copyrights – and don’t risk letting your intellectual property pass to people you didn’t intend.

Create an estate plan, make lists, and keep everything together so your heirs don’t have to look for it after you’re gone.

A little extra work today can translate to benefits – and peace of mind – later on.

Do you have an estate plan? If you’re an author, does it mention your copyrights? Click into the comments and let me know!

susanspannSusan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Thomas Dunne Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. Susan blogs about writing, publishing law and seahorses at http://www.SusanSpann.com. Find her on Twitter @SusanSpann or on Facebook.

37 comments to Who Inherits Your Copyrights?

  • Oh Susan, you just saved my heirs tons of time and hassle — thanks so much. I have a trust, but it would never have occurred to me to put my copyrights in it! THANK YOU!

    • I’m glad to help, Laura!

      Since you’ll be controlling them during your lifetime, and the copyrights will be in your name, you may want to make sure your pourover will references the copyrights specifically, as well as your trust. We’ll look more closely at the options in the coming months!

  • I’m definitely following this advice. Goodness, there’s so much to think about and do when writing, getting published, etc. It’s rare to see this aspect discussed. I’m grateful, and listening! Thank you, thank you, thank you!

  • Thank you in advance for this series! We don’t want to think about this type of thing, but we must.

  • Thanks, Susan, for helping clarify the “legalese” so we can all understand what we need to do. And thanks for the copyright/contacts list idea! I’ll get started on that today. See you in June!

  • Amanda

    Susan–hope you are going to address choosing a literary executor, since not every executor is suited to administer that part of an estate. My husband serves as literary executor to a number of writers. So glad you’re doing this series–very useful!

    • Thank you Amanda! Actually, choosing a literary executor is on the series topic list. I’d been debating whether to do it in the next installment or the one after, but yes, it will definitely be covered!

  • Thanks for raising my awareness on this, Susan. We have a will and I have no idea if intellectual property rights are covered in it. I’ll be checking on that as well as putting together a contact list.

    • Carol: if your current will doesn’t address the copyrights specifically, we’ll be looking at amendment language that your attorney can use to just draft a brief amendment to insert the copyrights, so you won’t need a whole new will.

  • While I’m planning on living forever, it’s probably sensible to plan for other possibilities. And I certainly hadn’t thought about all the intellectual property I’ve created during the past 2 decades.

  • Like many, this issue is something I had not even considered and I can’t thank you enough for bringing it to my awareness. I am looking forward to the rest of this series.

    • I’m glad it was helpful, Francis. Most of the authors I talk with have never even considered this issue, and since I handle both publishing law and estate planning, I’ve seen what can happen when plans aren’t made – so I’m glad to help raise awareness!

  • Great post, Susan. VERY helpful!! Thanks!

  • Great info! I would have never thought to do this, thanks for the advice here.

  • I had wondered about this. Thanks for saving me research time. Very helpful article. I look forward to reading more in this series.

    • Thank you Janice! If you have any specific questions as we go, please don’t hesitate to ask – I’ll try to incorporate the responses either in the comment threads or in subsequent posts!

  • Susan, in the short term, can hubby and I just write out a document and get it notarized and sent around? We know we need to do a bona fide officially will, but we want to take our time with it. Also, I have an LLC. 🙂

    • Hi Jenny –
      You’re in California (like me) so a handwritten (holographic) will is valid here. It doesn’t have to be notarized but it does have to be witnessed by two people who are not beneficiaries. It also has to be handwritten (in its entirety).

      Having an LLC can complicate the issue, because if the LLC owns your copyrights you reduce the applicable copyright term and can also have some other legal issues relating to copyright ownership based on state law. This is something we might want to chat about “off the grid” at some point. I’ll be glad to talk with you privately about it.

  • I, too have an LLC. What are the implications there for inheritance? Thanks so much for this!

    • With an LLC, you may not have inheritance issues because the LLC will not terminate upon your death. That said, if the LLC owns your copyrights, the term of copyright will be shortened – it won’t extend life of the author + 70 years as it does normally because the owner of the copyrights is an institution, which has only a 95 year copyright term. It’s important to get special legal review of that situation, by an attorney in your state who specializes in both business and copyrights (the role I fill here in California) to make sure your situation is optimized.

  • Great information. I have a will, but like others hadn’t thought about my books.

  • […] Who Inherits Your Copyrights? Another outstanding article from publishing attorney and historical fiction author Susan Spann for Writers In the Storm. […]

  • Tedd Galloway

    Thanks for the information. I am an aspiring writer who has had limited success with my first book. The potential future is unknown and that potential needs planning and protection,

  • Wow! Thanks so much for sharing this. I have a trust, but never gave a thought to copyrights. You’re wonderful!

  • […] An author’s estate plan may simply transfer ownership of copyrights to one or more named beneficiaries (or “heirs”), who then will own and manage the rights directly. When heirs have the proper business skills to manage copyrights, this is often the simplest and most cost-effective choice. […]