What will happen to your artwork when you go?
The copyright and resale royalty rights that artists hold in their original works is their most important, and continue long after the artist dies.
Therefore, it is important for artists to plan how their assets will be distributed and used after their death. A failure to create an estate plan can lead to costly disputes amongst family members that lessen the net return they are likely to receive from his or her works.
Length of copyright
In 2004, the US Free Trade Agreement Implementation Act 2004 (Cth) amended the s 33 of theCopyright Act 1968 (Cth) to extend the period of time for which copyright is enforceable. Copyright in literary, dramatic, musical or artistic work now remains enforceable for 70 years after the calendar year in which the artist died.
This makes it a particularly valuable asset which can be exploited by your beneficiaries for a significant period of time after your death.
Bequeathing your copyright
There are a two important steps associated with effectively bequeathing the copyright in the your original works.
First, you need to identify each of the original works in which you hold copyright. This is important for two reasons:
- Confusion can be created where part but not all of your suite of intellectual property is bequeathed under a will.
- Catch-all provisions which simply bequeath all of your intellectual property, without individually identifying the works in which they are held, can create a situation in which your beneficiaries are entitled to the copyright in works without knowing it.
Secondly, it is necessary to draft a clause which bequeaths the copyright to the nominated beneficiary or beneficiaries. The clause should either specify the original works in which the relevant beneficiaries are receiving copyright, or, if one beneficiary is receiving all of your copyright interests, make reference to a schedule that identifies each of the original works.
A testamentary trust
An alternative approach is to create a testamentary trust in which the copyright is assigned to a trustee who can manage it for the benefit of your nominated beneficiaries. This approach can be particularly attractive where your copyright interests have a high collective net worth. You can ensure careful management by a person who is experienced in the art trade.
Ensuring that your copyright is enforceable
To ensure your copyright is enforceable, it is important that you have documents and records which prove that you created the original work. You will need to make sure that your beneficiaries have access to these documents and records. If not, they may have difficulty proving that they were bequeathed an enforceable copyright over the relevant work.
Resale royalty rights can be given to any individual, charity of community body under your Will. This allows your beneficiary to claim a proportion of any secondary commercial sale of your artwork for a period of seventy years after you have died.
Let us help you with your estate planning
We can help you by:
- Advising you on the appropriate legal structure for the copyright of your artwork to your nominated beneficiaries.
- Drafting wills and associated documentation.
Estate planning should not be left until it’s too late.
Contact us now and a member of our experienced team can discuss with you how we can help protect the performance of your assets after your death.