It’s not exactly fun to think about, but death is something that everyone will have to face eventually. And when creators spend their lives putting their blood, sweat, and tears into their passion, it makes sense that they’d want to protect their copyright post-mortem. Although it’s a popular misconception, copyrighted works do not become public domain once the owner has died (just ask Michael Jackson — who, according to Forbes, was the highest-earning dead celebrity of 2018). Additionally, creators don’t only want to protect their legacies; often, the continued copyright protection of their works after their deaths enables their loved ones to receive support even in their absence. But what exactly happens to your copyrights when you pass away? There’s a few things to consider: who owns it, for how long, and what the owners are able to able to use it for.
Extent of Protection
Currently, all copyright-eligible works created on or after January 1, 1978 are protected for 70 years after the death of their author. This right is granted automatically by the Copyright Act of 1976, which established a 50-year protection period after death, as well as Amendments such as the Copyright Term Extension Act of 1998, which extended post-mortem protection to 70 years. This also applies to joint works created by multiple authors, where the term of protection is 70 years after the death of the last living contributor.
Protection is a little different for works made anonymously, under a pseudonym, or for-hire. In that case, protection lasts for either 95 years from the year the work was first published, or 120 years after its creation — whichever comes first. In general, however, when it comes to individual creators, 70 years after your death is the rule of thumb.
Like any other property you own, what normally happens is that ownership of your copyrights is transferred to the heirs of your estate. This will depend on local state law, but typically this will mean your spouse and/or children, or other family members if you are unmarried and do not have children. If you wish to specify that a particular person or entity receive ownership, you can use a will to name a beneficiary to whom you’d like to transfer ownership. In just one complicated example of why a will is important, legendary artist Prince died in 2016 without having one established — launching his heirs into a years-long legal battle over who owns his estate. Estate attorneys can help with drafting a will and ensuring it makes your wishes clear and unambiguous.
If the work has been licensed or transferred, however, your death does not mean that the agreement establishing that license or transfer has expired. Instead, the license holder or owner retains the specific rights granted to them for as long as the agreement lasts, or until the copyright term expires.
Use of the Work
Once ownership has been passed on, the new owner may generally use and license your works in whatever way they wish. If the rights to the works are co-owned, any profits made from the use of the work might need to be split amongst all of the rights holders, but usually permission will not need to be secured from the other co-owners if one of the rights holders wishes to use the work non-exclusively.
Additionally, you can use your will to specifically outline how you’d like your works to be used after you pass away. For example, Adam Yauch of the Beastie Boys included a provision in his will prohibiting his works from being used for advertising purposes. This is another area in which an estate lawyer would be helpful in the process of preparing your will.
What Can You Do?
Now that you have all this information about what will—or what could—happen to your work after your passing, what do you do next? The first step is to figure out what copyrighted works you own, along with any registrations you may have made. Next, of course, to determine what you’d like to happen to those works. Who do you trust to protect your legacy, and who do you want any profits of the work to go to? Have you transferred your work, or have you set up any licensing agreements? Was the work published anonymously? Make sure you have the answers to these questions in mind before proceeding.
You should also consider whether to register any works that aren’t already registered with the Copyright Office. Registration has a number of benefits, such as providing a public record indicating who owns the rights to your work. It also enables you and your heirs or beneficiaries to sue for infringement, as well as potentially receive statutory damages and attorneys’ fees as part of a judgment.
It’s also important that you talk with the person (or people) who you intend to inherit your copyright. Making them aware, and making sure they’re on board, will help them be prepared for the responsibility of protecting your works after you’re gone. You can also communicate to them how, exactly, you would like for them to handle your works.
Finally, we suggest reaching out to an attorney for assistance. An estate attorney will be able to help you create a will that outlines your exact desires — eliminating any ambiguity as to how you want your legacy to be carried out after you die. In addition, an estate attorney can help you consider any tax implications for your estate and may be able to recommend strategies for minimizing tax burdens, such as a trust.
A copyright attorney can also help you establish what specific rights your heirs or beneficiaries are entitled to, depending on when the work was created, if it was registered, and whether or not you’ve ever licensed or transferred ownership of the work. Of course, we understand that legal fees can be steep — check out our Creator Assistance Directory for resources on how to find legal assistance near you.