Q&A: Orphan Copyrights

Q.  Do I need to bequeath my copyrights to my beneficiaries to avoid my works becoming “orphans” after my death?  Also, does a “regular” will automatically include my copyrights, or is specific language necessary?

A.  In general, your copyrights will NOT become “orphans” after your death, even if you don’t specifically mention them in your will— and even if you don’t have a will.  Let me explain.

In the U.S. (and many foreign countries that have signed the Berne Convention), copyright endures for the life of the author plus 70 years, and ownership may be “bequeathed by will or pass as personal property by the applicable laws of intestate succession.”  Copyright is treated no differently than any other property.   In your  will, you can specify that your copyrights (or your house, or any other piece of property) go to a specific person, persons, or entities (a “legatee”).  If you don’t specify, your copyrights will be included in your “residuary” estate, and pass to whoever you have named to inherit that residuary.  If you die without a will, all of your property, including your copyrights, will pass to your closest relatives (your “heirs”) according to your state’s laws of “intestacy.”  (For example, if you are married and die without a will, typically one half or one-third of your property passes to your spouse, the other half to your children.)

Therefore, after your death your copyrights will be owned by someone (your legatees or heirs) for seventy years after your death.  That “someone” can sell, assign, or license your copyrights in the same manner as you, and upon their death can pass the copyright on to their legatees or heirs (until the seventy years expire).

Only in the event that you die without any legatees or heirs (or those persons cannot be located) would your works become “orphans.” An orphan work is one where the copyright owner cannot be located.  Under current U.S. law, orphan works may not be used by anyone, although legislation has been introduced in Congress that would allow limited use in certain situations.  Contrary to what some believe, your copyrights would NOT become public domain works.

You may have heard the term “literary executor,” which is not a formal statutory or legal “office.”  (An “executor” is a person responsible for settling a deceased person’s estate.) A “literary” executor is simply a co-executor whose responsibility is limited to your literary works. Very often, there is no need to name such a separate individual – your general executor (usually a spouse or other relative) can be the person in charge of your literary works pending their distribution to the beneficiary.  But if you believe that managing your literary works requires experience in publishing contracts, you should consider naming a literary executor.

Other issues to consider.  If you don’t want some of your works published after your death (your memoirs, perhaps) you must so direct in your will.  Should your executor or literary executor have the power to commission the completion of unfinished works?   will he/she have the right to terminate copyright licenses?  Will he/she receive a separate fee or commission?  Sue for infringement?  How long will he/she serve – until the distribution of the estate or for a longer time?  These are issues all writers should consider.

© Daniel N. Steven 2011