Copyright After Death: Ensuring Your Legacy Lives On

Life, Death, and the Pursuit of Copyright

Copyright is an intangible asset, but one that you can transfer upon death. It is typical that creators and authors spend a great amount of time putting in their blood, sweat, and tears into an art so it is entirely understandable that these creators would want to protect their copyright post-mortem. Generally, for works created on or after January 1, 1978, protection is automatically granted for the duration of the author’s life plus an additional 70 years. However, who owns your copyright once you are not around?

Identify the Valid and Rightful Copyright Owner

Before determining who inherits a copyright, you must identify the valid and rightful copyright owner to the work. Perhaps your deceased relative was a creator of a work that he or she did for a third party. The copyright generally becomes the property of the author who created it; however, an exception to this principle is a work made for hire. If a work is made for hire, an employer is considered the author and would own the copyright. 17 U.S.C. § 101. In contrast, independent contractors generally own their own work. Therefore, in advocating that your relative was the copyright owner to a work he created under the arrangement with a third party, you would argue that your relative was an independent contractor for the work which he or she was contracted to make. In deciding whether or not an author was an employee or independent contractor, courts look to several factors, which include actual control over the details of the work, the skill required, work location, and whether employment benefits were given. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 752 (1989). If it is determined that the work was made for hire, then the employer owns the copyright and this copyright exists 95 years from the first publication or 120 years from creation, whichever is shorter. This same timeline rule applies to works that are anonymous and pseudonymous unless the author’s identity is later revealed in Copyright records, in which case the term becomes the author’s life plus 70 years.

When There are Two or More Authors

Sometimes there is confusion as to who owns the copyright when there are two or more authors with no devised contract. In this situation, courts would likely look to see if this was a joint authorship in which two or more authors materially contribute to a work with the intention that their separate contributions be merged into a single work. In such an event, the joint authors would join the work jointly and equally, with each author having the right to exercise any or all non-exclusive rights inherent in the joint work. Additionally, each joint author must account to the other joint authors for any profits received from licensing the joint work. For a joint work prepared by two or more authors who did not work for hire, the term lasts for 70 years after the last surviving author’s death.

Passing on Copyrights Through A Will

Once you have figured out who owns the copyright to the work, you can determine what happens to the copyright upon death of the copyright owner. Copyright is treated no differently than other property so a copyright can be passed to an heir or to a third party through a will. Estate attorneys can aid with drafting a will and ensuring your wishes are clear and unambiguous with respect to your copyrights. However, if one does not have a will upon death, your state’s laws of intestacy govern. This typically means that your spouse and/or children, or other family members if you are unmarried and do not have children will inherit your property, and therefore, your copyright. In California in particular, it depends on your familial situation or lack thereof. For example, if you have a spouse, your half of any community property will be given to your spouse. If you have children but no spouse, your children will inherit everything. If you have a spouse and one child, your spouse will inherit all of your community property and half of your separate property.

What Happens After 70 years?

Upon the death of a copyright owner, the clock generally begins to run on the seventy-year copyright term. While the copyright term is still active, the person who inherits or is bequeathed the copyright becomes the new copyright owner, who will now reap the benefits of valid licensing or other agreements in place over the work. Once the seventy-year term expires, the work will enter the public domain, meaning others may use the work for commercial purposes without having to request any type of authorization or license.

If you have a copyright, remember that as intellectual property, it should be considered in your estate plan. If you do not have an estate plan that describes what will happen to your intellectual property, it may become part of your residual estate. Consequently, this may result in your intellectual property being inherited by a person you did not intend to inherit the property.

If you have any questions regarding any of the above-mentioned issues or what copyrights your heirs or beneficiaries are entitled to, depending on when the work was created, if it was registered, and whether you have licensed or transferred the ownership of the work, please do not hesitate to contact our office. We are your Orange County trademarks, copyright, and business litigation attorneys, here to help.