Do I need a will as a creative earning royalty payments?

In Drafting a will

As an artist, author, musician, or any other creative professional, if you earn royalties, own the copyright or a catalogue of works, it’s time to think about making a will.
 

Why you need a will

We often think of wills as being the reserve of those who own a home or business, or Scrooge McDuck-types with hoards of gold ripe for giving away. It’s a grey, fusty old document drawn up in grey, fusty old offices for grey, fusty old reasons.

The truth is a will is essential for anyone with any assets.

If you’re a musician, author, artist, or any other creator who receives royalties, or own the copyright to particular works, you should write a will. It’s a way of providing security for friends, family, and charitable organisations – something that can often be forgotten in the uncertain world of entertainment, especially with the lack of support for the industry during the pandemic.

Your first step should be to figure out what you own. Then, decide who the beneficiaries will be. Your beneficiaries are the people that inherit the contents of your will.

You’ll also need to choose two to four executors to carry out your final wishes. Plus, two independent witnesses, who can’t legally benefit from your will.
 

What should creators include in a will?

Even the great and the good, the celebrities we know and love, the big-screen heroes, don’t always make wills. And it’s a recipe for disaster, ending in millions of pounds in legal fees, a massive loss of earnings, and loved ones left out in the cold.

Don’t be a Jimi Hendrix (whose lack of will saw his siblings fight each other in court for over 30 years to get their hands on a cut of his royalties).

Alongside the usual – property, possessions, provisions, and financial assets – your will should also include:
  • Royalties

Royalties continue to be paid after you die – and it’s up to you to choose who will receive these. Not doing so means your family could miss out. If you’re a member of the Performing Rights Society, for instance, they’ll only collect royalties for seven years after you die.

But by appointing a beneficiary, the money will continue for the duration of the copyright (70 years from the date of death). Including royalties in your will is especially important if they’re your or your family’s main source of income.

It can be easy to dismiss royalties that aren’t currently making much money, but whether it’s backlist songs or a book that never got much promotion, you don’t know what will happen during those 70 years. If the source of your royalties gets a revamp, featured or becomes a cult hit years later (it happens!) then you won’t want your family missing out.

Michael Jackson, whose will was famously discovered long after he passed, tops the dead-celeb highest earners, netting his heirs around $48million every year.
 
  • Copyright

You should treat any copyright you own as you would a property. By putting it in your will you can transfer ownership of the copyright to a beneficiary. Not doing so could lead to years of stressful legal wranglings between heirs. Once they inherit, they’re free to use that copyright as if it were their own (which it technically is). However, you could add a clause stating how you want or don’t want that copyright to be used.

Copyright should also be fiercely protected by family members after an artist’s death. Remember the lawsuit brought by Marvin Gaye’s family against musicians Robin Thicke and Pharrell Williams over similarities between their hit Blurred Lines and Gaye’s Got to Give It Up?

That resulted in a $7million compensation award, plus 50% of the song’s royalties going straight into the Gaye family coffers. They were able to achieve this because they owned the artist’s copyright. Without a will, the judgement could’ve been very different.
 
  • Bodies of work

Artwork, half-finished first drafts, that catchy tune you jotted down on the back of a bank statement. Whatever work you own should go to an appreciative home. Your beneficiaries will then be able to continue your legacy, earn money from your creativity, and stop any creations falling into the wrong hands.

There are countless tales of authors who gain global recognition after they’ve died. Can you imagine a world without Emily Dickinson, Philip K. Dick, or Franz Kafka? And who would want to?

If there was no will in place, the estate might never have been able to publish some true classics (and we’d be all the poorer for it).
 
  • Other intellectual properties

Intellectual property doesn’t just include copyrighted material. It also covers patents, trademarks, the logo you designed, or that brand you own. Often these can be quite lucrative in their own right – and even when they’re not, your heirs should decide how they’re used.

When Bob Marley died, he didn’t have a will – and it took more than 30 years to settle the estate. Finally, a judgement was made: Marley’s wife, Rita, was granted the rights to the musician’s name and likeness, and has since aggressively defended the commercial use of Marley’s songs, IP, and image.

Thanks to CGI recreations of dead actors – think Peter Cushing and Carrie Fisher in the latest Star Wars films – image rights are even more of a hot topic these days. Hollywood stars are now busy making sure their heirs can control likeness rights in films long after they’ve passed away. You won’t see Robin Williams, for instance, starring in computer-generated form until at least 2039. His will made sure of that.
 

What happens if you don’t have a will?

If you pass away without writing a will, it’s called dying intestate. When this happens, it’s up to the state to determine who benefits from your assets. Usually, these go to your partner – but only if you’re married or in a civil partnership. Common law ‘marriages’ don’t count. Depending on your marital status, your children may also inherit.

For those in the creative industries, that means your works could be given to the person or organisation entitled to the copyright – and that’s not necessarily your family.

A prime example would be the author Stieg Larsson (he of The Girl with the Dragon Tattoo fame). When the celebrated writer passed away with no will in place, his partner of 30 years received no inheritance. Larsson’s estate was divided up between his father and brother. Thankfully, the family gave her ownership, but they were under no obligation to do so.

Pablo Picasso was another creative who didn’t have a will, despite reaching the ripe old age of 91. As a result, it took six years and $30million in legal fees, to resolve an avoidable dispute.

If you want to provide a secure future for your family, it’s good idea to sit down and discuss your will with a solicitor.

A legal expert helps you get it right first time (and hopefully prevent any family feuds and challenges to a will arising from a badly worded will). For example, if you don’t own the copyright to your works, but still receive royalties, your will must state ‘royalties’. If you bequeath your ‘copyright’, your beneficiaries won’t receive anything. That’s a legacy no creator wishes to leave.

The Law Superstore’s quick quote form helps you compare and connect with solicitors and will-writers that work for you.
 
 

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