New York Estate Planning & Elder Law Blog
INTELLECTUAL PROPERTY IN ESTATE PLANNING
This blog explored the generic topic of intellectual property in estate planning in the recent past, which is worth reading for a discussion on the larger topic. Estate planning for the artist or even the art collector is certainly related but worthy of its own discussion. With respect to intellectual property, copyrights are provided to protect in an original work of authorship fixed in any tangible medium of expression, which can be replicated, perceived or communicated. To put that in plain english, the law protects those an artist who creates new forms of expression in established media, whether it be paintings, sculpture (including welded sculptures), photography, writing literature, screenplays or plays, music and even choreography. Artists such as Christo certainly make classification of art more difficult, but that is probably the point of the art. What happens, however, when an artist or art collector passes away and they have a substantial amount of artwork. Transferring a recording of a song is not the same as transferring the copyright to that song. Transfer of intellectual property must be in writing.
CREATING AN INVENTORY, DECIDING WHO GETS WHAT OBJECTS AND WHO GETS WHAT INTELLECTUAL PROPERTY RIGHTS
Whether the artist is an author, with manuscripts, a songwriter with collected notes and soundtracks of unrealized music or edits of current songs or even paintings or sculptures, it is important to obtain a full inventory and obtain a valuation of the collection. With respect to art collectors, the need for inventory is all the more important. The accounting should also include any rights to intellectual property.
Sir Paul McCartney’s collected notes of lyrics may not be worth much as an item, although it will undoubtedly be worth something, but it will pale in comparison to the value of the copyrights to the same songs. The notes of JD Salinger may be worth something to a museum, but, once again, the copyright to his classic ‘A Catcher in the Rye’ will dwarf what the manuscripts will fetch at an auction. Once the artist or art collector has a grasp on what he/she owns and its current value, it is time to sit down and decide who to grant certain objects and who should benefit from the intellectual property. If the overall estate is of worth a certain amount, it may behoove the artist or art collector to create a trust. For others a will may be best. In either event, it is important to leave detailed instructions for the transfer of the physical and intellectual assets.
TERMS OF TRUST OR WILL
It is important to ensure that the art will continue to be viewed or otherwise enjoyed by society for the future. While it is within the rights of a copyright holder to withhold the right to publish a particular book, if the author created a truly great book, society itself suffers. Virgil wanted his epic poem The Aeneid burned upon his death, fortunately that did not happen, as literally two millennia of readers fell in love with its various characters, including the noble enemy Turnus. The same holds true for works of art, sculpture and any number of expressions.
Independent of the question of who should receive the final manuscripts or various sketches or any work not intended to be published. Museums may be the best place for various manuscripts and other such items. If they will not fetch too much at auction, the decision of what to do with such items is much easier. If, on the other hand, the items will fetch some money at an auction, the owner needs to ask whether the point of the transfer of the item is to transmit wealth or to insure that a particular person has those items to address a personal connection with them. This list is by no means exhaustive but merely scratches the surface of what questions should be asked when creating an estate plan for an artist or art collector.
To insure that your estate planning addresses your desires with respect to any art collection or intellectual property that you may own, there is no substitute for consulting with an experienced estate planning attorney.