Copyrights are a unique form of intellectual property recognized by the federal government. A copyright exists in an “original work of authorship” fixed in any form. Copyright is not the same thing as ownership of a material object. Under federal law, a copyright can be transferred by will (or intestate succession) like any other item of personal property. It is important to understand that copyright exists separately from the actual object that is the subject of the copyright. For example, if you write a novel, and your will leaves “all copies of the novel in my possession” to someone, that does not transfer the copyright as well. This is because, as the term implies, copyright refers to your right as the author to decide who may or may not make copies of your work in the future.
You may not think copyright will matter much after you're gone. But U.S. copyrights continue for 70 years after an author's death. So if you anticipate future royalties from your artistic or literary works, it is essential to make the appropriate provisions for your copyrights as part of your will or living trust.
An Unusual Situation
Copyrights and estate planning can also intersect in more unusual ways. In March, a probate judge in Arlington County, Virginia, authorized the executor of an estate to “take any reasonable action necessary to access, remove and destroy any web postings” authored by the deceased. The executor was actually the deceased man's ex-wife. He allegedly made several posts to his personal blog criticizing his former spouse.
The posts were subsequently republished on several other websites. The ex-wife, acting as executor, sent notices under federal copyright law demanding the posts' removal. Some websites complied. Others have not, citing an exception in federal copyright law permitting “fair use” of otherwise protected works.
Eugene Volokh, a law professor at UCLA who writes for the Washington Post, suggested the enforcement of copyright here might not be appropriate, given that the deceased “voluntarily published the works” and the posts presently have no commercial value. Copyright law is principally concerned with protecting an author's ability to profit from his or her works.
The Virginia case is by no means a definitive statement of the law. But it does raise interesting questions about how far an executor may go in “erasing” a deceased individual's online works. Many popular social media websites have terms of service that grant the website a “perpetual” license to continue publishing anything a person voluntarily and legally posts. If you post an update to Facebook, for example, you cannot then sue Facebook for violating your copyright in that post, because in agreeing to Facebook's terms of service you grant the website a non-exclusive license to publish that post.
Does this mean you should bequeath the copyright to your Twitter feed in your will? No, but it is important to ensure you appoint fiduciaries you can trust to manage your online and intellectual property portfolios after you pass away. At a minimum, your will or trust should make clear who inherits any copyrights of possible commercial value. If you have questions about this, or any other California estate planning topic, contact the Law Office of Scott C. Soady in San Diego today.