Estate Planning and Songwriting Royalties

July 3, 2013 by Scott C. Soady

In 1974, R&B legend Barry White released one of his greatest hits, “You’re the First, the Last, My Everything.” The song itself travelled a lengthy path. Originally written as a country song two decades earlier by Peter Radcliffe, White and his songwriting partner, Anthony Sepe, rewrote the lyrics to make it an early disco track.

Sepe was entitled to 20% of the song’s royalties. Anthony subsequently sold half of his royalties (or 10%) to his brother, William Sepe, for $10,000. Warner/Chappell Music, Inc., and the American Society of Composers, Authors & Publishers (ASCAP) paid the royalties to Anthony Sepe, who in turn gave half to his brother. This arrangement continued for about 30 years. The brothers never registered their agreement with Warner or ASCAP. For many years they simply relied on their original oral agreement, although they did make a written agreement in 2004.

Anthony Sepe died in 2009 without leaving a will. His wife and children created a trust to receive his ASCAP royalties. The trustee, Sepe’s widow, refused to continue paying her brother-in-law his half of the song royalties. She claimed Anthony Sepe signed a written revocation of the original assignment just before his death. William Sepe also learned that in 2008, Anthony Sepe improperly assigned his brother’s half of the royalties to another company.

William Sepe subsequently sued the trustee and other parties, seeking to enforce his longstanding royalties assignment. The case remains pending in the California courts. ASCAP has suspended payment of the disputed royalties until the matter is settled.

Assigning Song Royalties
Songwriting royalties are a form of intellectual property and as such should always be included in your estate planning. ASCAP, which represents over 460,000 songwriters and royalty holders, has specific procedures in place to deal with the death of a member. ASCAP memberships can be assigned to one or more successors. A deceased member’s estate may also sell or irrevocably assign royalties. When notified of a member’s death, ASCAP will generally hold royalty payments until a successor can be identified.

An ASCAP member may make a limited assignment. For example, a husband could make an limited assignment of royalties to his wife during her lifetime, with the stipulation that upon her death, the royalties would be paid to their children. Alternatively, the husband could make an irrevocable assignment to his wife, in which case she could then appoint one or more successors in her own estate planning documents.

As with all property, if you don’t make a will or register an assignment with ASCAP, then your songwriting royalties will pass intestate to your heirs as provided under the California Probate Code. Federal copyright law may also apply additional restrictions. Royalties are ultimately derived from copyright, which is a product of federal, not California, law.

It’s important to avoid a situation like the one William Sepe now finds himself in. If you wish to assign (or receive) royalties in perpetuity, not only should such an assignment be made in writing, it must also be incorporated into both parties’ estate planning. Anthony Sepe apparently failed to do any estate planning at all, as he left no will. Nor did he avail himself of ASCAP’s procedures for protecting his brother’s interest in future royalties. If you’re a songwriter, or just a person who is entitled to songwriting royalties, you should contact an experienced estate planning attorney who can advise you on the best way to carry out your wishes after your death.