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Income after death: the importance of estate planning for recording artists


Whilst it’s a difficult matter to contemplate, recording artists and other creative workers must consider the value of their copyright when considering their broader estate planning. Your music will often be the result of years of blood, sweat, and tears or possibly moments of sheer brilliance. Income from the copyright of your music endures after death and therefore it’s important to consider how this is managed. 

Broadly speaking, copyright is an intellectual property right which stops it being copied and includes a range of other rights including a right to royalties. The author of the work is generally the first copyright owner and copyright cover musical works. 

Copyright in your musical works generally endures for 70 years after your death. The value of your musical works, which belong to your estate, continues during this period and could, potentially, increase simply because of your death. 

Whilst still alive, the recent example of Kate Bush’s Running up that hill shows that it’s extremely difficult to predict what value your copyright will continue to have. Despite originally being released in 1985, the resurgence of the single following being woven into Netflix’s Stranger Things has propelled it into the charts and it became the most streamed song on Spotify in a number of countries.  

In any Will you appoint executors. The executors’ role extends to establishing the value of the assets (which in the case of copyright can be tricky) and liabilities of the estate, declaring these to HMRC and the Probate Registry to enable a document called a Grant of Probate (‘Grant’) to be issued after which assets are collected, liabilities are paid, including tax, costs associated with the application for the Grant are paid and what’s left is distributed to the beneficiaries in accordance with the terms of your Will. Any costs incurred in the administration of the estate are deducted from the estate. 

The executors will deal with all aspects of the estate, this would include any copyright in your estate. Unlike authors and their estates, there is no distinct grant of probate that allows an executor to deal solely with copyright and therefore you need to make specific provision in your Will for it to be dealt with or, you may, unwittingly pass on the copyright to a beneficiary unintentionally. 

Your choice of executor should reflect the complexity of the task at hand in dealing with the copyright and your catalogue of musical works.  Whilst your executor should seek professional advice, you will wish to make sure that the executor manages your musical works sympathetically whilst preserving its value for the benefit of your chosen beneficiaries; this extends to taking action, if necessary, against unauthorised use of the works which seek to exploit the value of the works or those uses that could negatively impact the overall value. 

A recent example includes George Michael’s estate taking action against Tory Lanez to cease distribution of a track which, they say features, an uncleared sample from Careless Whisper. 

Depending on your works, it can be a large and daunting task for any executor despite professional advice (the cost of which will be met by the estate or the royalty income). There’s a very delicate line to tread between taking reasonable and proportionate action to stop any breaches of copyright to preserve the value, but also seeking to exploit and maximise the value of the copyright for the beneficiaries and doing so in a sympathetic manner. 

Your executor may also need to consider other opportunities for the sympathetic exploitation of your works including allied and supporting digital content which could be just as significant. ABBA, having recently begun virtually appearing from its new ABBA Voyage Arena, just goes to show the myriad of potential opportunities and angles to be considered for any musical works that has value in its copyright. 

The key to making sure your copyright is therefore used in the way you would hope is to have a Will and supporting letter of wishes which gives clear guidelines, which can be regularly reviewed, as to how the works should be exploited. It’s important that all the possible permutations are considered. There could be a number of legal issues to consider following your death, possibly in more than one jurisdiction, and the sums involved could be life-changing. Throughout the executor must remain at the top of their game deploying industry experts at the right time to ensure that all negotiations provide the best result possible. 

In some cases, the value of the copyright can be truly mind-boggling; David Bowie’s estate recently having sold the late singer’s catalogue to Warner Chappell Music for a price reported to be in excess of £180m. 

Therefore, choosing an appropriate executor, or executors, is crucial. Candidates may include business partners already familiar with the issues that could crop up, family, close friends or a solicitor. Regardless, it’s likely that your chosen executor will need to deploy expert advice, at your estate’s cost, to ensure the musical works are dealt with correctly. 

So the takeaway is, if you've not already done so, to make a Will. When making a Will devote serious consideration to a set of accessible guidelines as to how your works should be exploited and the appointment of executors whose prescribed role, along with the broader task of administering your other assets, is to sympathetically exploit the value of your works for the benefit of your chosen beneficiaries. 

Amish Patel is a Senior Associate in the London office of law firm RWK Goodman LLP.

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