Jump to content
Sign in to follow this  
midmocurious

Deceased Artist

Recommended Posts

This can be a complicated question involving both federal and state questions of law. In addition, you are touching upon issues surrounding probate law and estate planning.

 

To start, please see Circular 40, Copyright Registration for Works of the Visual Arts. If CFR sections 202.19, 202.20, and 202.21 are followed and you are in compliance, and assuming other factors are met which I will not discuss here, then depending on what state you live in, that might be the case.

 

However, please see an attorney(s) in your state about determining what your state laws are as it relates to property and this is merely a starting point and not meant to be applied to your particular facts.

Share this post


Link to post
Share on other sites

To start, please see Circular 40, Copyright Registration for Works of the Visual Arts. If CFR sections 202.19, 202.20, and 202.21 are followed and you are in compliance, and assuming other factors are met which I will not discuss here, then depending on what state you live in, that might be the case.

 

You may find the publication to which IP_Counsel referred here: Circular 40.

 

The references to the Code of Federal Regulations (CFR) IP_Counsel provided are incomplete. The provisions to which I assume he or she refers are 37 CFR §§ 202.19 through 202.21. You may access them here: CFR Title 37.

Share this post


Link to post
Share on other sites

Copyright law doesn't say anything about inheritance. A copyright is just another asset to be distributed by will or the laws of intestate succession ( without a will) in your state.

 

That’s not quite right. While the copyright law is not an inheritance law (which is covered by state laws), the Copyright law does affect how certain copyright rights are transferred at the death of the author. 17 U.S.C. § 203 for example provides the rules for terminations of transfers or licenses of copyrights. When the author is dead, that section specifies to whom the right of termination transfers and upon termination to whom the rights belong. The result applying this section may differ from what state probate law would otherwise provide. So, where copyrights are at issue in an estate, it’s important to consider both the copyright law and state probate law to determine to whom any copyright rights will go.

Share this post


Link to post
Share on other sites

Copyright law doesn't say anything about inheritance.

 

It most certainly does (see below).

 

 

 

Hello - what happens to the copyright to Artwork once an artist dies? I would think the copyright - if not specified in the will - would go to the spouse? 

 

Is this correct?

 

Section 201(d)(1) of the U.S. Copyright Act (United States Code, Title 17) states as follows:  "The ownership of a copyright . . . may be bequeathed by will or pass as personal property by the applicable laws of intestate succession."

 

In a situation in which a copyright owner has no will (or does not provide -- either specifically or by way of a residuary provision -- for the disposition of the copyright in his/her will) and is survived by a spouse, under the intestate succession laws of every state, the surviving spouse will inherit at least a share of the copyright.  Whether the surviving spouse inherits the entire copyright depends on whether the copyright owner is also survived by issue (i.e., children, grandchildren, etc.).

 

It's also worth pointing out that, in community property states, if the copyright-protected work is created during the marriage, it is likely to be considered community property (similar rules may apply in some or all non-community property states).

 

Since "Tax_Counsel" referenced one of the laws relating to termination of inter vivos transfers (which includes exclusive licenses), it's worth pointing out that there are a number of issues relating to those laws currently being litigated -- in part because the person who ends up with the termination right may be different than the person who inherits the copyright, and that can lead to a bunch of messy situations.

Share this post


Link to post
Share on other sites

 

 

Since "Tax_Counsel" referenced one of the laws relating to termination of inter vivos transfers (which includes exclusive licenses), it's worth pointing out that there are a number of issues relating to those laws currently being litigated -- in part because the person who ends up with the termination right may be different than the person who inherits the copyright, and that can lead to a bunch of messy situations.

 

That was pretty much my reaction upon reading that provision: it could indeed lead to messy situations. It strikes me that perhaps Congress didn’t completely think that out when it enacted this. 

Share this post


Link to post
Share on other sites

It strikes me that perhaps Congress didn’t completely think that out when it enacted this. 

 

Copyright professors and scholars have been thinking the same thing and have been salivating over the issue for years.

Share this post


Link to post
Share on other sites

What are the odds that art work is even registered? Slim.

 

Works created after January 1, 1978 do not need to be registered or published to be protected under copyright law. Instead, the work is protected from the moment the work is fixed in tangible form (e.g. putting the painting on canvas, writing the words of a book on paper, etc). So, it is indeed possible for an estate today to have copyright issues for work created in the last 36 years even if the work was never published or registered. Of course, it’s only really worth digging into those issues if the works involved have some significant value. 

 

You might want to read the Copyright Office’s Circular 1 entitled Copyright Basics if you have an interest in understanding the fundamentals of copyright law. 

Share this post


Link to post
Share on other sites

Hey all - thanks for all the replies. I am wading thru this stuff. I also made a call to the library of congress and talked to a very helpful person. Here is what she had to say. 

 

Since a will was not left, 1/2 of the copyright belongs to the spouse (my mother)

There are 3 of us kids - so we each own 1/3 of the last half of the copyright. 

To do anything copyright related (making a print or other reproduction), there would need to be more than a 50% consensus - so either my mom and one sibling agreeing or all 3 kids agreeing. 

 

Does this seem right? 

 

Question for guys, I should have asked while I had her on the phone - sorry. 

 

What happens to my mothers half of the copyright claim when she passes? Can she specify in her will or will it default to 30% for each of the surviving children? 

 

Thanks. 

Share this post


Link to post
Share on other sites

Does this seem right?

 

Maybe.  With respect to ownership, it depends on the intestate succession laws of the (unidentified) state in which the copyright owner (your father, I'm assuming) lived at the time of his death.  A 50/50 split between the surviving spouse and surviving children is not uncommon, but it's not universal.  And, as I noted previously, depending on the applicable state law (and on when the work was created), the copyright might be community or marital property.

 

With respect to the other part of what you were told:

 

 

To do anything copyright related (making a print or other reproduction), there would need to be more than a 50% consensus - so either my mom and one sibling agreeing or all 3 kids agreeing.

 

This is just completely wrong, and I'm a little surprised that someone at the Copyright Office would give you such patently incorrect information.  Each joint owners of a copyright "holds an individual interest in such work [and] has an independent right to use or license the use of the copyright . . . without the need to obtain the consent of the other coowners."  http://www.mccarter.com/Joint-Ownership-And-Assignments-Of-Intellectual-Property-Rights-Part-II---Copyrights-05-27-2011/.  Note that this article primarily focuses on joint ownership that results from joint creation of the underlying work, but the rules aren't any different where the joint ownership arises as a result of an inheritance or otherwise.  Note also the discussion regarding the obligation of joint owners to account to each other for profits earned from the exploitation of the work.

 

 

 

What happens to my mothers half of the copyright claim when she [dies]? 

 

The same thing that happened to your father's interest.  It will pass according to the terms of her will or the applicable intestate succession law.

 

 

 

or will it default to 30% for each of the surviving children?

 

30%?  If, in fact, your mother owns only 50% of the copyright, then she could not leave 30% to each of you (total of 90%).  If you're talking about 30% of her 50% interest, why would you think only 90% would pass to her heirs?  What do you think would become of the other 10% of her 50% interest?

Share this post


Link to post
Share on other sites

So something I am not understanding when it comes to the copyright. Spouse gets 50%, remaining siblings equally divide the remaining. 

 

What does this mean functionally? Based on this ""holds an individual interest in such work [and] has an independent right to use or license the use of the copyright . . . without the need to obtain the consent of the other coowners." " 

- who cares about who owns what % of the copyright? 

 

thanks

Share this post


Link to post
Share on other sites

So something I am not understanding when it comes to the copyright. Spouse gets 50%, remaining siblings equally divide the remaining. 

 

What does this mean functionally? . . . 

- who cares about who owns what % of the copyright?

 

I lack the necessary information to say, in the abstract, who does and doesn't care about what.  As far as what joint ownership of a copyright "mean functionally," that's also hard to address in the abstract.  One thing you need to understand is that ownership of a copyright is different than ownership of the/a physicial embodiment of the copyright protected work.  For example, if I paint a picture and have it framed and give it to my sibling as a gift, my gift of the physical painting does not mean that I have also given the copyright to my sibling.  Absent a written agreement to transfer the copyright, I would still own the copyright in the painting.  Of course, if my sibling does nothing with the painting other than hang it on a wall in his/her home for the next 50 years, after which he/she dies, and his/her heirs throw the painting away, then my ownership of the copyright is pretty meaningless.

 

On the other hand, let's say that I write and record a love song for my significant other and give my SO a recording of the song.  After a year, we break up, and a year after that, I achieve massive success as a singer/songwriter.  Ten years later, my former significant other has fallen on hard times and discovers that he/she still has the recording I gave him/her and decides to capitalize on my success.  Because my gift of the recording did not include the gift of the copyright, I would be able to use my copyright to prevent or stop my former SO from doing this.

 

Thus, as you can see, the significance of owning or jointly owning a copyright may vary greatly depending on the relevant circumstances.  Since you haven't really explained the circumstances about which you're interested, it's impossible for me to comment on those circumstances.

Share this post


Link to post
Share on other sites

Thanks for the reply - it is helpful and I understand the art and the copyright are 2 separate things. 

 

Here is the situation. 

 

Father is gone - no specific will left regarding copyright

Each of us kids have 30 - 50 pieces of art. 

Mother has well over 2000 pieces of art. 

there are about 200 pieces out in the wild so to speak.

 

I have started a business marketing the art about 2 years ago - including prints, web presence, gallery showings and the selling of some of the originals - all with my mothers consent and the other siblings consent. I have professional images of most of the art that each kid owns and a lot of the art my mother has. All this was done with everyone consent.

 

One of the siblings is now unhappy regarding the business and wants to branch out on his/her own. My mother, one of the other siblings and I would like to keep this business centralized to protect print quality, inventory (limited prints) and framing quality - but mostly we want to be fair. 

 

So what copyright rights does that sibling have now in relation to artwork not directly in his/her control? 

I suppose he/she can make images and market anything in his/her possession. 

Is he/she entitled to any digital images I have on hand? 

Is he/she entitled to make reproductions of art regardless of who owns it or must they get permission from the owner first? 

Share this post


Link to post
Share on other sites

Father is gone - no specific will left regarding copyright 

 

This needs to be addressed first.  Did your father have a will?  It sounds like he did, so I'll proceed on that assumption.  I understand that the will did not say anything specific about his copyrights.  However, most wills have a residuary clause that says what happens with any property not specifically mentioned in the will.  For example, let's say that Elmer makes a will.  Among other things, he owns a mansion and a yacht.  In his will, Elmer leaves his masnion to his friend Pepe and his yacht to his business partner, Sam.  After these specific gifts, Elmer's will says, "As to any property owned at the time of my death, and which is not specifically mentioned in this will, I leave such property to the love of my life, Petunia."  Did your father's will contain a provision like this?  If so, then it, and not the applicable state intestate law governs who now owns the copyrights.  It would also be helpful to know if your father's estate was probated and, if so, whether the copyrights were included in the inventory of assets and their disposition dealt with through probate.

 

 

 

Each of us kids have 30 - 50 pieces of art. 

Mother has well over 2000 pieces of art. 

there are about 200 pieces out in the wild so to speak. 

 

Have any of the copyrights been registered?

 

 

 

So what copyright rights does that sibling have now in relation to artwork not directly in his/her control? 

 

If I assume that, in addition to not expressly providing for the disposition of his copyrights, your father's will also did not have a residuary provision that provided for their disposition, then the owner(s) of the copyrights are the person(s) specified in the applicable state intestate law.  In what state did your father live at the time of his death?  In addition, as I have mentioned at least twice, community/marital property laws may come into play if the works in question were created during the marriage.  Were they?

 

For the sake of giving you an answer, if I assume that the copyrights are now jointly owned by your mother (50%) and you and your two siblings (16 2/3% each), then each of you has the right to exploit any of the works without the consent of the other joint owners.  Each joint owner's right to exploit is restricted only by the obligation to account to the other joint owners for profits earned.  For example, let's say that you exploit 25 of the works at a cost to you of $4k and you receive $10k as a result.  You have to account to your mother and siblings and will have to pay your mother $3k of your $6k in profits and $1k to each of your two siblings.

 

Of course, as a practical matter, any of you will only be able to exploit works of which you have copies, and you aren't obligated to provide copies to your sibling who intends to exploit the works in a manner of which you don't approve.

 

By the way, "exploit" means to exercise any of the exclusive rights of copyright as provided in Section 106 of the Copyright Act (http://www.law.cornell.edu/uscode/text/17/106) or to authorize (i.e., license) others to do so.

Share this post


Link to post
Share on other sites

PG1067 - thank you very much for the reply. This is actually quite intriguing. 

 

"This needs to be addressed first.  Did your father have a will?  It sounds like he did," 

No will at all. I am now in the process, with my mother of working up an estate planning with a lawyer. I am assuming that all art left in the house is now my mothers.  We are legally outlining what happens to the art if anything should happen to her. The estate/trust lawyer told me I need to talk to a copyright lawyer. I am having a very hard time finding one - but am still looking. 

 

"Have any of the copyrights been registered?"

No. What exactly needs to be registered? Just the business name, the entire body of work or each individual piece of art? 

 

"In what state did your father live at the time of his death?  In addition, as I have mentioned at least twice, community/marital property laws may come into play if the works in question were created during the marriage.  Were they?"

Most of the work - I would say 95% of it was done during the marriage. Not sure how you are using the term state? Missouri is the location and he was in a married state when he died. 

 

Thanks again. 

Share this post


Link to post
Share on other sites

By "state," I meant which of the 50 states in the U.S.  :-)

 

When a person dies without a will in Missouri and is survived by a spouse and children who are also children of the surviving spouse, his spouse gets the first $20k in value of the estate plus half of the balance.  The other half of the balance goes to his issue (i.e., children, grandchildren, etc.).  Of course, that assumes that the entire estate is liquidated, which makes it each to divide up cash.  However, estates are not always liquidated, and I don't know whether the surviving spouse can pick and choose which assets she retains.  It also does not appear from the quick search I ran that MO makes specific provisions for marital property (MO is not a community property state).  I don't think you've said how long ago your father died, but this is certainly something to discuss with a probate attorney.

 

 

 

"Have any of the copyrights been registered?"

No. What exactly needs to be registered? Just the business name, the entire body of work or each individual piece of art?

 

You could register for a trademark for a business name with the U.S. Patent and Trademark Office, but that's a completely different issue.  Copyrights are registered with the U.S. Copyright Office.  I would suggest you visit www.copyright.gov, where you can find a number of relatively short articles on basic issues of copyright law.  I have seen folks try to register multiple works with a single registration form, but I'm not entirely sure how that works, and this is something about which you would want to consult with a copyright attorney.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
Sign in to follow this  

×
×
  • Create New...