Wednesday, January 27, 2016

How Does Fotog Dad Leave Copyrights to Kids?

Dutch children photographed at Ellis Island
Dear Rich: My dad is a fine-arts photographer. His photographs have been exhibited in gallery shows many times. On his computer, he has many thousands of images, pretty much all the same quality as those he has shown. He does not mention his intellectual property or copyrights in his will, only"his artworks" meaning the ones hanging on the walls of his house. What should he write in his will if he wants his five kids to be able to split the profits equally from these images, should they ever get published within the copyright period but after his death, and actually produce a royalty or money from their sale? 
We can't provide the language to use in a will -- state laws differ and we're not an estate planning expert -- but we can highlight five important issues.
Artworks. You state that your Dad is using the term "artworks" and that it refers to pictures hanging in his home. To avoid confusion your father may want to make it clear that the term "artwork," as currently used in his will, does not refer to the prints of photographs he created.
Photo copyrights and photo prints. The existing prints of your father's works are tangible assets; the copyrights in the photos are intangible assets. Both should be transferred by will. In other words, your father must specifically reference the copyrights when transferring their ownership. If he fails to do so, the copyrights will likely fall into what is known as the residuary estate and be divided according to the residuary estate instructions.
Copyrights. Your father owns the copyright in the photos unless he assigned rights to someone else or he created the photos as part of his employment. If he grants rights to all five siblings equally they would all be co-owners (and each could exploit rights as long as the other co-owners were compensated). This may not be an ideal method for exploitation in which case, the siblings may decide to transfer all rights to another entity -- for example, an LLC -- and set up a system for exploitation and decision-making.
Any existing deals. If there are currently royalty-generating deals in place, your father's will should assign the right to receive royalties from those deals to the children.
Bypass the will and assign them now. Your father may want to make the grant of rights prior to death. In that case he need only execute an assignment of copyright to the children as co-owners.That decision may require consultation with an attorney to determine if there are any IP, tax, or estate considerations as explained in this article.
P.S. Dept. Now may be the time to organize and register group collections of your Dad's photos