If you have a trust, especially for estate planning purposes, have you transferred your copyrights into that trust? Remember, copyrights are descendible assets, meaning they go to your heir(s) when you die. But, if you don’t put them in your trust, they may end up in the hands of someone you didn’t want to get them.
Allow me to back up a bit. …copyrights, in the USA, last for 70 years after the death of the (human, non-entity) author/creator. They exist at the moment of creation—when the work is created, the copyright automatically exists. Registration provides extra protection, particularly in the form of additional remedies for infringement but, even without registration, the asset (the copyright in a work) exists when the work is created and lasts 70 years after the artist’s death. So, just like any other asset, you need to pick who gets yours when you leave this life.
Many people have revocable trusts created to ease the transfer of assets after death. Briefly, these trusts are changeable throughout your life (hence “revocable”) and hold the assets in the trust for the benefit of the beneficiary who is, while you’re alive, you (or if it is with your spouse, both of you). When you die, the trust becomes irrevocable and the beneficiary/ies get the assets included in the trust, as per its terms. Trusts avoid probate and, thus, get the assets to the beneficiaries much more quickly and easily than a traditional will (which, by the way, is still much better than nothing!!).
Sadly for creatives, many trust and estate lawyers don’t know even to ask about copyrights when it comes to your assets. In that situation, those otherwise competent lawyers may not advise you properly about transferring your copyrights to your trust. No formal transfer and the copyrights will not go to whomever you actually wanted to get them.
A trust, even your own trust, is not you; so, just like you have to transfer a car title to put the car in your trust, so must you transfer the title (so to speak) in your copyrights. Transferring a copyright requires a signed writing to be valid. That is, the current owner of the copyright(s) has to sign (and yes, it can be electronically) a document that explicitly says that she/he/they is/are transferring ownership to a new owner.
I recently worked with a client’s trust attorney to do exactly that—draft the documentation needed to get those copyrights into the new trust. Luckily, both the client and the other attorney were wise enough to ask about copyrights when it came to the list of assets to be included in the trust; and I was more than happy to help out with that paperwork. Make sure that, if you decide to go the trust route for your estate, you don’t miss out on transferring your copyrights, too. It may be a bit of additional cost, but it shouldn’t be much and your beneficiaries will thank you for it, later.
