New York Estate Planning & Elder Law Blog
A June article in the New York Times reports that progress is finally occurring in the resolution of the estate of the late James Brown. Despite a clear intent that his estate is used for underprivileged children in Georgia and South Carolina, however, the late James Brown’s estate is yet to be used in such a way. This article reviews some of the helpful tips that the late James Brown could have followed to avoid facing such obstacles.
# 1 – Understand the Nature of Your Assets
If your estate includes music ownership rights or any other type of intellectual property, it’s a good idea to gain a basic understanding of the nature of these rights and how they can be handled in your estate. One of the rights held by musicians is the right to perform or play a piece publicly, which is more commonly known as “performance rights”. When a person passes away, these rights can dissolve and become lost if not properly handled.
One of the best places to begin when understanding what copyrights a musician owns is by making an inventory of copyrights. It’s also a good idea to document who has a legal relationship with each copyright, which will often include parties like agents and publishers. Following a detailed inventory of your music rights, you should consider how and whether you will transfer the copyrights. You might decide to transfer rights while you are still alive or after you pass away.
Transferring copyrights can be challenging. For example, some organizations like ASCAP collect royalties on copyright transfer.
# 2 – Figure Out How Long Your Copyright Will Last
Unlike many other types of property ownership, copyrights only last for a limited time. The duration that a copyright lasts depends on whether the music in question was created before or after January 1, 1978. For music created before 1978, an initial term of 28 years for the copyright exists. This copyright period can be extended for another 67 years. The rights to music created before 1978 do not vest until the last year of the initial term which at the latest is January 2006. If the creator of the music died before these rights vest, different rules exist for how rights are transferred.
For the copyright of music recorded after January 1, 1978, copyrights can be transferred at any time. The creator or beneficiary of the music, however, can terminate the transfer. Termination of the transfer, however, is limited to the five-year period following the 35th anniversary of the date on which the transfer occurred. The beneficiary of the music in question is determined by statute. The first potential beneficiary is a surviving spouse if one exists. If no surviving spouse exists, any surviving children or grandchildren are beneficiaries. In establishing an estate plan, the creators of music should document when a copyright is transferred as well as when the five-year termination period commences. This information should then be kept up to date and made available to your estate planning lawyer as well as beneficiaries.
Contact an Experienced Estate Planning Attorney
Unfortunately, it’s not possible in every situation to eliminate the possibility of an estate planning dispute. By understanding how your intellectual property rights will be transferred and who will have termination rights then planning adequately, however, it is possible to greatly reduce the odds of litigation. If you or a loved one needs the assistance of an experienced estate planning attorney, you should not hesitate to contact Ettinger Law Firm today for assistance.