Protecting Your Copyrights In Your Estate Plan.

An often overlooked element of estate planning is what to do with intellectual property assets, such as copyrights. A copyright is a "bundle" of legal rights owned by the author--each right is separate and divisible. For the most part, copyrighted works can be treated like any other assets. They can be owned jointly, transferred by gift or by death, or held in trust.

A copyrighted work is a creation of authorship, fixed in a tangible medium of expression. It can include works of art, audio recordings, musical compositions, images, videos, computer programs, symbols, and written works. The medium can also be digital.

Even if you have assigned or licensed some of the rights to a copyrighted work, you may still retain other rights in the "bundle." Under current U.S. copyright law, the duration of copyright for a work created or fixed on or after January 1, 1978, extends for the life of the author plus 70 years after. Thus, after you die, your copyright interests will transfer to your heirs, and can be later transferred during those 70 years.

You can convey your copyright interest to beneficiaries in your Will or trust, just as you can convey other assets. If the works are digital, they can be accessed and managed by the fiduciaries of your Will and Power of Attorney under the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA).

Determining the value of copyrighted works can be difficult. In some cases, such as with a musical composition or work of art, it can be appraised by a professional. Having your works appraised may be required if you plan to report it on a gift tax or estate tax return.

Another important step to protect your copyright assets is to register them with the U.S. Copyright Office. Copyright automatically becomes effective for a work of authorship the moment the work is fixed in a tangible medium, and the formalities of registering are not required for that to occur. However, by registering the work, you (and your heirs) will have legal standing to enforce copyright protection in federal courts in the event of infringement. Current registration fees are $45 for a single author online application, so it's a small price for protection.

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A qualified estate planning attorney can help you craft a Will and Power of Attorney that protect your assets, tangible and intangible, for your beneficiaries.

 

Protecting Your Digital Property.

What happens to your digital online content when you are incapacitated or die? Perhaps you, like many, haven't thought much about what would become of those assets. But like other assets, your electronic data may be valuable to the people in your life. While the law is well-established regarding your fiduciary's access to tangible property, the law surrounding access to digital information is a relatively new area. Fortunately, the law has caught up with the technology.

Through model legal language, the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), has been adopted into law by almost every state (including Minnesota). This law allows your digital assets to be accessed and managed by your named fiduciaries. If you have appointed agents to act on your behalf over your tangible property--by means of a power of attorney, will, or trust--those agents can likewise act on your behalf in dealing with the custodians of your online digital data in order to gain access.

RUFADAA defines a "Custodian" as a person that carries, maintains, processes, receives, or stores a digital asset of a user. These custodians include entities such as Google, social media platforms, cloud storage services, web-hosting services, email platforms, and other user accounts.

Digital property access in a power of attorney.

If you are using a Statutory Short Form Power of Attorney and you have elected to grant your Attorney-in-Fact all powers under Section 523.24, subdivision 1-14, then your Attorney-in-Fact will automatically have access to your catalog of electronic communications, such as computer files, web domains, and virtual currency.

However, if you wish to grant your Attorney-in-Fact access to the content sent or received by you, such as emails, text messages and social media accounts, the Statutory Short Form Power of Attorney does not provide for such access. In this case, you would need to either execute a General Power of Attorney with language expressly granting such authority, or a Digital Property Authorization to be used in conjunction with your Short Form Statutory Power of Attorney.

Digital access in your estate plan.

Do you want to grant the Personal Representative of your Will or Trustee of your Trust access to preserve and maintain your digital content, such as photos, video, documents, etc., for your descendants to enjoy? Alternatively, if your digital content includes sensitive or proprietary information perhaps you would wish to prohibit your Personal Representative from accessing the content. As is the case with tangible property, with digital assets the choice of disposition is yours and you should clearly set forth your wishes as to the retention or disposal of those digital assets in your estate plan.

Keep an inventory of your digital property.

Start by making a list of the places where you have digital content stored. Write down each location, including the URL, the type of content stored there, and the necessary login information your fiduciaries will need in order to access it. Keep this list in a safe place along with your other legal documents, such as in a file cabinet or safe deposit box. For obvious reasons you should never store this list online or on a computer or other electronic device!

Protecting and preserving your digital content is something that should be incorporated into your estate plan. Consulting the advice of a qualified attorney is a wise idea to get this started.