By: Michele G. Moss, Esquire
Johnson Moss L.L.C.
One of the purposes of creating a will is to identify the assets you have that you want to pass on to your loved ones. We are usually concerned with identifying all of our tangible physical assets, including personal property, bank accounts, and real estate to make sure that these assets are bequeathed according to our wishes. However, most of us don’t think about our valuable intellectual property, such as copyright, that we can also pass on to our loved ones.
Copyright is a form of protection granted by law for original works of authorship that are fixed in a tangible medium of expression. Copyright protects literary, dramatic, musical and artistic works including writings, artwork, photographs, poetry, songs and movies. Copyright protection attaches or begins once the original work (photograph, writing, drawing, image, etc) is fixed or created. The moment I am done typing this article it will be protected by copyright. The moment you post your photograph to Facebook, Flickr or Instagram it is protected by copyright. Copyright registration with the federal government is a prerequisite to filing a lawsuit in federal court for copyright infringement. However, copyright registration is not required for copyright protection to exist.
The author or owner of copyright has certain exclusive rights: 1) the right to reproduce the work in copies, 2) the right to prepare derivative works based upon the work, 3) the right to distribute copies of the work to the public by sale or other transfer of ownership, lease, lending or rental, 4) the right to perform the work publicly, 5) the right to display the copyrighted work publicly, 6) in the case of sound recordings, the right to perform the work publicly or by means of a digital audio transmission. Ownership of copyright and the exclusive rights that it provides can be extremely valuable.
The legendary music producer Quincy Jones filed a lawsuit against the estate of the late Michael Jackson seeking additional royalty payments. Jones claims he was underpaid his share of the royalties for use of Jackson’s music in the film “This Is It” which was released after Jackson’s death and in two Cirque Du Soleil shows. During the trial, Jackson’s estate showed that Jones earned $8 million dollars in royalties in the two years after Jackson’s death in 2009. Despite this fact, a jury in Los Angeles awarded Jones $9.4 million in damages. Under copyright law, Jones has authorship rights in the music that he produces and can therefore be eligible for royalty payments.
Copyright ownership originally vests in the author or authors of the work. However, copyright ownership can be transferred, in whole or in part, by “any means of conveyance or by operation of law.” 17 U.S.C.A. §201(d)(1). In order to be valid, a transfer of copyright ownership, other than by operation of law, must be in writing and must be signed by the owner of the copyright or the owner’s authorized agent. Copyright ownership may also be transferred by bequest in a will or pass as personal property by the applicable laws of intestate succession.
Have you or has anyone in your family created any original (not copied) literary, dramatic, musical or artistic works that could be valuable? If so, you should consider identifying those works in your will and transferring copyright ownership in them to your loved ones. Ownership of copyright (depending upon the popularity of the particular creative work) can be an extremely valuable asset for you and your family for years to come. Quite often, an author’s works become more popular or sometimes are not even discovered until after their death. To ensure that your family can benefit from your creative works, you should specifically and clearly transfer copyright ownership to these works in your will.
If you have questions about copyright or trademark or you need to act quickly to protect your brand or your creative works from being misused or exploited by others, please contact me at: