Estates and copyright
When an individual dies, the assets they held in life devolve to their estate trustee who has an obligation to identify and collect in these assets and administer them. Typical assets that an estate trustee could be expected to take inventory of include real property, bank accounts and cash. A more unique type of asset that an estate trustee may need to deal with is intellectual property such as copyright.
The estate trustee has an ongoing duty to the beneficiaries of the estate to preserve the estates assets and in the case of copyright, this can involve pursuing litigation to protect the copyright against infringement.
In Canada, ‘Copyright’ is defined as the exclusive legal right to print, publish, perform, record, produce, reproduce or license literary, artistic or musical material.[1] The right is given to an owner, who is most often the artist or creator of the work. The owner has the right to assign or license the copyright. Assignment is akin to selling the property interest whereas licensing permits another to use the copyright under certain conditions, with the owner retaining ownership.
Associated with this copyright are ‘moral rights’, which work to preserve the integrity and intent behind the work by the creator and allow them to limit some uses of their work.[2] Moral rights, while separate from economic rights, exist for the same period as copyright, and the estate can enforce them.
Once assigned, copyright exists throughout the lifetime of the creator and the right is protected for 70 years after their death.[3] Copyright is international in nature and has been since the Berne Convention for the Protection of Literary and Artistic Works in 1886,[4]which 181 countries are signatory to. As such, most of the world abide by either a 50- or 70-year protection period for copyright. Following the 70-year mark, the artistic work becomes public domain, meaning it becomes freely available and legal permission is not required to be used.
Tolkien Estate and other estates & copyright litigation
In June 2023, legal proceedings were brought in California by the Estate of J.R.R. Tolkien, the author of The Lord of the Rings and The Hobbit (the “Tolkien Estate”) and the Tolkien Trust against Mr. Dementrious Polychon for violation of their copyright.[5]
The suit was brought due to Mr. Polychron’s “willful and blatant violation” of the Tolkien Estate’s copyright interests in The Lord of the Rings. The basis of the claim is that Mr. Polychron has written, published and sold a book titled ‘Fellowship of the King’, a purported sequel to Tolkien’s saga and which appears to be an amalgamation of Tolkien’s books ‘Fellowship of the Ring’ and ‘Return of the King’. This comes weeks after Mr. Polychron filed his own $250 million suit against the Tolkien Estate, Amazon and Jeff Bezos for their 2022 television series Rings of Power, which he claims stole aspects from his manuscript.
Estate trustees have a fiduciary obligation to protect the copyright they hold against infringement. In 1999, the estate of Martin Luther King Jr. sued CBS for their use of his 1963 ‘I Have a Dream’ speech. The basis of the claim was the refusal of CBS to pay the estate for their use of the speech in a documentary. Mr. King’s estate claimed that the speech constituted copyrighted works and was not in the public domain. The US Court of Appeals for the Eleventh Circuit found that the speech was a ‘performance’ rather than a ‘general publication’ of Mr. King’s written text, thus granting Mr. King’s estate copyright over the speech and entitlement to a license fee for its use.[6]
And in 2013, the estate of the singer Marvin Gaye sued Pharrell Williams and Robin Thicke for copyright infringement because of their song ‘Blurred Lines’, claiming similarity to Gaye’s 1973 hit ‘Got to Give it Up’. In 2016, the US Court of Appeals for the Ninth Circuit ordered Mr. Williams and Mr. Thicke to pay $5 million in damages and entitled the estate of Marvin Gaye to 50% of the royalties from ‘Blurred Lines’ in perpetuity.[7]
Regarding the Tolkien Estate, the proceedings brought against Mr. Polychron highlight how the copyright for works by an individual who passed away almost 50 years ago can still be vigorously defended in court by their estate. Moreover, the licensing of Tolkien’s work has spawned a Hollywood franchise which has brought hundreds of millions of dollars into his estate. This has far exceeded the returns that J.R.R. Tolkien received on his works during his lifetime, demonstrating the economic potential in copyright after death.
Estate planning for copyright interests
Copyright represents a unique asset and it is important for those creators with valued works to consider how their interest is dealt with on death. Legal issues can arise over entitlement to royalties of the copyright, the status of the asset (such as licensing), their valuation, as well associated moral rights of the creator.
Prepare a Will: The best planning practice for creators with copyright is to draft a Last Will and Testament which outlines how the copyright should be dealt with on death and who will benefit. A Will can ensure that the estate is entitled to the copyright for the full 70-year period. Section 14(1) of the Copyright Act states that where an author of a work is the first owner of the copyright, no assignment of the copyright is valid for more than 25 years after their death, except in a Will.
Furthermore, a Will can ensure that the testamentary intentions of the creator are definitively spoken to, reducing the likelihood of litigation occurring on their passing. When the singer Prince died in 2016, he did not leave a Will to divide his $156 million estate. Unsurprisingly, litigation ensued between his six-half siblings who became intestate beneficiaries to his estate, and only in 2022 did the family reach a settlement. The settlement split Prince’s lucrative music rights amongst his half-siblings.[8]
Appoint an appropriate estate trustee: The creator will need an estate trustee who understands their work and the moral rights connected with them, as well as the fiduciary nature and obligations of the role. In the instance of J.R.R. Tolkien, for many years the estate trustee of his estate was his son Christopher Tolkien. Christopher was intimately familiar with his father’s work, having laboured to publish his manuscripts and unpublished books throughout his life. He was also involved in numerous litigation battles, including an $80 million suit against Warner Brothers in 2012 for their use of copyrighted works in gambling machines, which the Tolkien Estate claimed fell outside of the original licensing agreement made in 1969 and harmed Tolkien’s legacy.[9]
It may also be prudent to prepare a separate Will that deals exclusively with the copyright, and appoint an alternate estate trustee just for those assets. This Secondary Will could deal with intellectual property which is not subject to probate, in turn ensuring the privacy of those rights.
Document and value the copyright: It is advisable for a creator to engage professionals to accurately value the copyright interest and the ability of their future estate to deal with them. The creator should consider how many copyrights they hold, licensing agreements or assignments they have made to third parties and the rights that will require ongoing management. This is especially important where the value of the copyright is likely to comprise a large part of the estate.
Conclusion
The economic and moral rights associated with copyrighted works can be of enormous importance not just to the creator during their lifetime but to their beneficiaries after death. As such, it is important for those with copyrighted works to think carefully about how they wish to deal with these rights on their passing and to appoint suitable fiduciaries to then deal with these assets and protect them.
—
[1] Copyright Act, (R.S.C., 1985, c. C-42) section 3(1) – the Copyright Act is a piece of federal legislation that governs all copyrights in Canada.
[2] Ibid section 14.1
[3] In 2023, Canada signed the Canada-United States-Mexico Agreement (CUSMA) which increased the post-death copyright period from 50 to 70 years.
[4] For a copy of the Berne Convention (1886), see: https://treaties.un.org/doc/Publication/UNTS/Volume%20828/volume-828-I-11850-English.pdf
[5] The Tolkien Trust v. Polychron, C.D. Cal., No. 2:23-cv-04300, 6/1/23
[6] Estate of Martin Luther King, Jr., Inc. v. CBS, Inc, 194 F.3d 1211 (11th Cir. 1999)
[7] Williams v. Gaye, No. 15-56880 (9th Cir. 2018)
[8] The Guardian, ‘Prince family and advisers settle distribution of singer’s $156m estate’ (2 August, 2022) <https://www.theguardian.com/music/2022/aug/02/prince-singer-heir-distribution-estate>
[9] Fourth Age Limited et al. v. Warner Bros. Digital Distribution Inc et al. (CV 12-9912 ABC)
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Written by: Oliver O'Brien
Posted on: June 19, 2023
Categories: Commentary, WEL Newsletter
Estates and copyright
When an individual dies, the assets they held in life devolve to their estate trustee who has an obligation to identify and collect in these assets and administer them. Typical assets that an estate trustee could be expected to take inventory of include real property, bank accounts and cash. A more unique type of asset that an estate trustee may need to deal with is intellectual property such as copyright.
The estate trustee has an ongoing duty to the beneficiaries of the estate to preserve the estates assets and in the case of copyright, this can involve pursuing litigation to protect the copyright against infringement.
In Canada, ‘Copyright’ is defined as the exclusive legal right to print, publish, perform, record, produce, reproduce or license literary, artistic or musical material.[1] The right is given to an owner, who is most often the artist or creator of the work. The owner has the right to assign or license the copyright. Assignment is akin to selling the property interest whereas licensing permits another to use the copyright under certain conditions, with the owner retaining ownership.
Associated with this copyright are ‘moral rights’, which work to preserve the integrity and intent behind the work by the creator and allow them to limit some uses of their work.[2] Moral rights, while separate from economic rights, exist for the same period as copyright, and the estate can enforce them.
Once assigned, copyright exists throughout the lifetime of the creator and the right is protected for 70 years after their death.[3] Copyright is international in nature and has been since the Berne Convention for the Protection of Literary and Artistic Works in 1886,[4]which 181 countries are signatory to. As such, most of the world abide by either a 50- or 70-year protection period for copyright. Following the 70-year mark, the artistic work becomes public domain, meaning it becomes freely available and legal permission is not required to be used.
Tolkien Estate and other estates & copyright litigation
In June 2023, legal proceedings were brought in California by the Estate of J.R.R. Tolkien, the author of The Lord of the Rings and The Hobbit (the “Tolkien Estate”) and the Tolkien Trust against Mr. Dementrious Polychon for violation of their copyright.[5]
The suit was brought due to Mr. Polychron’s “willful and blatant violation” of the Tolkien Estate’s copyright interests in The Lord of the Rings. The basis of the claim is that Mr. Polychron has written, published and sold a book titled ‘Fellowship of the King’, a purported sequel to Tolkien’s saga and which appears to be an amalgamation of Tolkien’s books ‘Fellowship of the Ring’ and ‘Return of the King’. This comes weeks after Mr. Polychron filed his own $250 million suit against the Tolkien Estate, Amazon and Jeff Bezos for their 2022 television series Rings of Power, which he claims stole aspects from his manuscript.
Estate trustees have a fiduciary obligation to protect the copyright they hold against infringement. In 1999, the estate of Martin Luther King Jr. sued CBS for their use of his 1963 ‘I Have a Dream’ speech. The basis of the claim was the refusal of CBS to pay the estate for their use of the speech in a documentary. Mr. King’s estate claimed that the speech constituted copyrighted works and was not in the public domain. The US Court of Appeals for the Eleventh Circuit found that the speech was a ‘performance’ rather than a ‘general publication’ of Mr. King’s written text, thus granting Mr. King’s estate copyright over the speech and entitlement to a license fee for its use.[6]
And in 2013, the estate of the singer Marvin Gaye sued Pharrell Williams and Robin Thicke for copyright infringement because of their song ‘Blurred Lines’, claiming similarity to Gaye’s 1973 hit ‘Got to Give it Up’. In 2016, the US Court of Appeals for the Ninth Circuit ordered Mr. Williams and Mr. Thicke to pay $5 million in damages and entitled the estate of Marvin Gaye to 50% of the royalties from ‘Blurred Lines’ in perpetuity.[7]
Regarding the Tolkien Estate, the proceedings brought against Mr. Polychron highlight how the copyright for works by an individual who passed away almost 50 years ago can still be vigorously defended in court by their estate. Moreover, the licensing of Tolkien’s work has spawned a Hollywood franchise which has brought hundreds of millions of dollars into his estate. This has far exceeded the returns that J.R.R. Tolkien received on his works during his lifetime, demonstrating the economic potential in copyright after death.
Estate planning for copyright interests
Copyright represents a unique asset and it is important for those creators with valued works to consider how their interest is dealt with on death. Legal issues can arise over entitlement to royalties of the copyright, the status of the asset (such as licensing), their valuation, as well associated moral rights of the creator.
Prepare a Will: The best planning practice for creators with copyright is to draft a Last Will and Testament which outlines how the copyright should be dealt with on death and who will benefit. A Will can ensure that the estate is entitled to the copyright for the full 70-year period. Section 14(1) of the Copyright Act states that where an author of a work is the first owner of the copyright, no assignment of the copyright is valid for more than 25 years after their death, except in a Will.
Furthermore, a Will can ensure that the testamentary intentions of the creator are definitively spoken to, reducing the likelihood of litigation occurring on their passing. When the singer Prince died in 2016, he did not leave a Will to divide his $156 million estate. Unsurprisingly, litigation ensued between his six-half siblings who became intestate beneficiaries to his estate, and only in 2022 did the family reach a settlement. The settlement split Prince’s lucrative music rights amongst his half-siblings.[8]
Appoint an appropriate estate trustee: The creator will need an estate trustee who understands their work and the moral rights connected with them, as well as the fiduciary nature and obligations of the role. In the instance of J.R.R. Tolkien, for many years the estate trustee of his estate was his son Christopher Tolkien. Christopher was intimately familiar with his father’s work, having laboured to publish his manuscripts and unpublished books throughout his life. He was also involved in numerous litigation battles, including an $80 million suit against Warner Brothers in 2012 for their use of copyrighted works in gambling machines, which the Tolkien Estate claimed fell outside of the original licensing agreement made in 1969 and harmed Tolkien’s legacy.[9]
It may also be prudent to prepare a separate Will that deals exclusively with the copyright, and appoint an alternate estate trustee just for those assets. This Secondary Will could deal with intellectual property which is not subject to probate, in turn ensuring the privacy of those rights.
Document and value the copyright: It is advisable for a creator to engage professionals to accurately value the copyright interest and the ability of their future estate to deal with them. The creator should consider how many copyrights they hold, licensing agreements or assignments they have made to third parties and the rights that will require ongoing management. This is especially important where the value of the copyright is likely to comprise a large part of the estate.
Conclusion
The economic and moral rights associated with copyrighted works can be of enormous importance not just to the creator during their lifetime but to their beneficiaries after death. As such, it is important for those with copyrighted works to think carefully about how they wish to deal with these rights on their passing and to appoint suitable fiduciaries to then deal with these assets and protect them.
—
[1] Copyright Act, (R.S.C., 1985, c. C-42) section 3(1) – the Copyright Act is a piece of federal legislation that governs all copyrights in Canada.
[2] Ibid section 14.1
[3] In 2023, Canada signed the Canada-United States-Mexico Agreement (CUSMA) which increased the post-death copyright period from 50 to 70 years.
[4] For a copy of the Berne Convention (1886), see: https://treaties.un.org/doc/Publication/UNTS/Volume%20828/volume-828-I-11850-English.pdf
[5] The Tolkien Trust v. Polychron, C.D. Cal., No. 2:23-cv-04300, 6/1/23
[6] Estate of Martin Luther King, Jr., Inc. v. CBS, Inc, 194 F.3d 1211 (11th Cir. 1999)
[7] Williams v. Gaye, No. 15-56880 (9th Cir. 2018)
[8] The Guardian, ‘Prince family and advisers settle distribution of singer’s $156m estate’ (2 August, 2022) <https://www.theguardian.com/music/2022/aug/02/prince-singer-heir-distribution-estate>
[9] Fourth Age Limited et al. v. Warner Bros. Digital Distribution Inc et al. (CV 12-9912 ABC)
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