All That You Can’t Leave Behind: Creative Control From Beyond the Grave

Respected creators understand that the key to artistic integrity is maintaining creative control. We celebrate artists like Prince who were steadfast in their creative vision, and musicians are often warned about the pitfalls of giving up the rights to their works. So, what happens when the artist is no longer around to provide direction as to how their work is to be presented, monetized, or consumed?

While you will not find a checkbox on your advance directive to state your preference for reincarnating as a hologram, artists should carefully consider their most valuable possession when crafting an estate plan: their intellectual property. This can include not only copyright in their creative works, but also trademarks associated with their brand (band names, logos, etc.), and publicity rights to their name, image, and likeness. These are truly the gifts that keep on giving. According to Forbes, total earnings for the 13 best compensated deceased celebrities was nearly $1 billion in 2021. Ranked at number two on that list was Prince, with an estimated value of $120 million.

Ironically, despite Prince’s tireless fight for integrity against record labels, he left the world with a vault full of music and no will. Prince failed to leave a clear plan for how his works and their associated royalties should be governed. What ensued was a series of lengthy legal battles for control. And he is not the only one: Aretha Franklin, Amy Winehouse, Sonny Bono . . .  all died without a will.

What does that mean for the future of their work?

Control

When an individual dies, an estate for that deceased individual (referred to as a “decedent”) is created. An executor or personal representative acts on behalf of the decedent’s estate. If the decedent does not have a valid will, state law generally provides who will serve as executor. Georgia law generally provides that the decedent’s spouse has priority to serve as executor, and an unmarried decedent’s heirs can select an executor (from among the heirs) by agreement of a majority of the heirs. The default provisions of law may work for some, but for many, the default rules can wreak havoc. For example, what if the decedent’s spouse is not the parent of the decedent’s children and is at odds with the decedent’s children? What if the children are at odds with one another? Although the executor is bound by fiduciary duties to administer the estate for the benefit of the beneficiaries, the executor has considerable control over information and decisions and has some discretion over the administration, so the identity of the executor is of critical importance.

A testamentary instrument, such as a will or revocable trust, can appoint an executor or trustee to control the decedent’s property after death. For an entertainer or artist with complex intellectual property or licensing agreements or complicated business structures, the average person may not be capable of administering the estate appropriately to maximize the value of the estate. It may make sense to consider someone with the necessary skills to address the unique assets of the decedent in addition to all the duties of the executor. In some cases, it may work well to have a co-fiduciary serve alongside a family member.

Some artists may also have special wishes with respect to their property. If their wishes are not expressed either contractually or in a testamentary instrument, the executor is under a duty to maximize the value of estate property for the benefit of the beneficiaries. Because of the executor’s duties to heirs or beneficiaries, the executor might need to take actions that are contrary to the wishes of the decedent to avoid liability to estate beneficiaries. For example, assume that an artist does not want his image used after death for concerts, movies, or video games. If those wishes are not expressed in a legally binding document, such as a will or trust that can impose limitations on the uses of the artists image and likeness, the executor would probably not be able to honor the artist’s wishes without facing legal liability from the estate beneficiaries because the duties are owed to the living beneficiaries, not the deceased artist.

Ownership

The persons who receive property when a person dies without a will varies by state law. For example, assume an artist and her husband have two children (and neither has any other children). If the artist died a resident of Florida, her estate would pass entirely to her husband. If the artist instead died a resident of Georgia, one-third of her estate would go to her husband, and each of her children would receive one-third of the estate. Of course, if the decedent did not have a clear state of residence at the time of her death, one could imagine the dispute and litigation that could ensue between her husband and children.

In every state in the U.S. other than Georgia, spouses typically have rights to their spouse’s estate unless the spouse has waived that right. The surviving spouse’s right to a portion of the decedent’s estate can range up to as much as half the estate and may also include rights to the deceased spouse’s primary residence. Proper planning will take the spousal interests into account and, if spousal rights are inconsistent with the party’s wishes, find ways to address the spousal entitlements upon death. Depending upon state law and the client’s circumstances, spousal entitlements can often be addressed through a prenuptial agreement, post-nuptial agreement, spousal waiver, or other planning.

Copyright Termination Rights

One other testamentary wrinkle that is unique to creators is copyright termination rights. An artist may assign the rights to their work for a number of reasons during their lifetime — as part of a record deal, publishing contract, gratuitous donation, etc. Under the U.S. Copyright Act, authors have the right to reclaim their copyright interest 35 years after the date of transfer which offers them an opportunity to take “a second bite of the apple” and renegotiate terms. The catch is, if the artist dies before that 35-year timeframe, only certain statutorily prescribed heirs have the power to reclaim those rights under the law — whether the artist wanted them to or not. Ray Charles Foundation v. Robinson is an example of how this can go very wrong when there are competing interests at play. We will explore postmortem termination rights in more detail in a future article.

Conclusion

Artists who value the preservation of their legacy must take special consideration of their intellectual property when crafting an estate plan. It is imperative to catalog your work and keep careful records of any contracts, licenses, or assignments. Most importantly, artists should utilize a will and other key testamentary documents to explicitly provide direction as to how their work should be shared and how the revenue from those works should be managed.