Estate Planning for Artists, Performers and Creators: Who Controls Your Intellectual Property?

If you make your living from your ideas, your image, your voice, your performances or the work you create, a conventional estate plan may not be enough.

I know this because estate planning was not my first career.

Before I became an estate planning attorney, I worked in television. I later practiced intellectual property law and worked as a copyright litigator. A creative professionals most valuable asset may not be sitting in a bank account. It may be a copyright, a royalty stream, an unpublished manuscript, a catalog of photographs, a performance agreement, a professional name, or the commercial value associated with a person’s identity.

That background continues to inform my estate planning practice today.

De Fonte Law PC, sponsored a discussion on the Right of Publicity at the California Lawyers Association Intellectual Property Law Section’s annual conference. I am also preparing to record a continuing legal education program for CEB on intellectual property and estate planning.

Why am I spending so much time talking about intellectual property with IP lawyers?

Because creative clients can have an entirely different category of estate planning problems.

A beautifully drafted trust may address the house, investment accounts and personal property while failing to answer some of the most important questions about the client’s career. This can lead to distraught fans (think of Prince and his catalog kept from us for so long), the disrespectful use of an artists work (we have all seen ads with our favorite songs that break our hearts, and doormats with our favorite artists work), and the destruction of a family fighting over who knows best.

Great estate planning addresses the following questions while the creator is alive, healthy and available to answer them.

• Who owns the intellectual property?
• Who can manage it if the creator becomes incapacitated?
• Who receives the income?
• Who can make decisions about unfinished or unpublished work?
• Who controls the client’s name, voice, image and likeness?
• And did anyone actually transfer the intellectual property into the estate planning structure?

Structure of Estate Plan for Intellectual Property

Sometimes the trust used to provide for a client’s family is appropriate to address the artist’s or performer’s intellectual property and business interests.

But if monetization of these assets will be important on incapacity or death, we have to think about the family’s privacy. How would they feel if an executive at Evil Corp demands to see a copy of the trust to ensure the successor trustee has the power to sign documents – the trust that lists personal assets and contains loving language and instructions for children.

Sometimes creating a separate trust to address the right of publicity, copyrights, and business interests is a better solution because it protects the family’s privacy.

Every De Fonte Law PC trust allows the named successor trustee to appoint others a ancillary trustees. For example, the name successor trustee is in charge of general trust administration and distributions of cash to the beneficiaries, but they could appoint another qualified person to address the Right of Publicity, another to manage real estate holdings, and a third to negotiate licensing deals. This puts the right person in charge overall, without forcing them to take on the fiduciary obligation and liability to do all of things necessary to exploit and monetize the intellectual property assets, and they can ensure that no deal is done that would conflict with the artist’s morals and values.

Intellectual Property Is an Estate Planning Asset

When most people prepare an inventory for an estate plan, they think about familiar assets:

• Real estate
• Bank accounts
• Investment accounts
• Retirement accounts
• Life insurance
• Business interests

Depending on the person’s career and contracts, a creator may also need to identify:

• Copyright interests
• Royalty and residual income
• Licensing agreements
• Trademarks
• Rights associated with a professional name or brand
• Name, image, likeness and voice rights
• Business entities holding creative assets
• Publishing agreements
• Recording agreements
• Management and agency agreements
• Film and television rights
• Artwork and photography
• Unpublished manuscripts
• Unreleased recordings
• Works in progress
• Digital assets and accounts
• Physical and digital archives

The first estate planning question is not necessarily, “Who should inherit these assets?”

The first question may be much more basic: What exactly does the client own and who do they own it with and what does that mean?

The Estate Planning Lawyer Needs to Understand the Career

A creative professional may have an entire team around them.

Agent. Manager. Business manager. CPA. Financial advisor. Entertainment lawyer. IP lawyer. Insurance professional.

Each person may understand one part of the client’s financial or professional life.

The estate planning lawyer needs to understand how those pieces fit together if the client dies or becomes incapacitated. This does not mean the estate planning lawyer replaces the client’s intellectual property lawyer or entertainment counsel. A great estate planning lawyer ensures that the client’s agents and successors have an organizational chart describing “who does what” so that they act quickly for an incapacitated or deceased client.

The IP lawyer may know exactly what the client owns.

The entertainment lawyer may understand the contractual restrictions.

The CPA or business manager may understand the income streams.

The agent or manager may understand the marketplace and relationships.

The estate planning lawyer determines how the estate planning documents interact with all of it.

For clients with substantial intellectual property, estate planning should be a team exercise.

“I Thought My Manager Was Handling That”

This is one of the most dangerous assumptions a creative professional can make.

Your manager may be fantastic. Your agent may know your career better than almost anyone. Your business manager may know where every dollar comes from. But knowing how your career works and having legal authority to manage your property are two different things.

If you become incapacitated tomorrow, can your manager legally:

• Access the appropriate accounts?
• Manage an entity?
• Sign a licensing agreement?
• Deal with a publisher?
• Collect royalties?
• Exercise rights under an existing contract?
• Protect intellectual property?
• Deal with an infringement problem?
• Make decisions about unreleased work?

Maybe.

But probably not.

The answer depends on the contracts, ownership structure, business documents, powers of attorney, trust documents and applicable law.

“I assumed my manager could handle it” is not a satisfactory incapacity plan.

Incapacity Can Be a Career Event

Estate planning conversations tend to focus heavily on death.

For a working creative professional, incapacity may present an equally important planning problem.

Imagine a performer, author, artist or other creator becomes seriously ill or injured and cannot work for six months.

The person may be unable to perform, but career could remain active.

• Royalty payments can continue.
• Residuals can arrive.
• Contracts may require attention.
• Licensing opportunities may appear.
• An entity may need someone authorized to act.
• Bills and employees may need to be paid.
• An infringement issue may arise.
• A publisher, studio, gallery or licensing company may need an answer.
• An opportunity may have a deadline.

Who steps in?

A financial power of attorney may be part of the solution, but creative clients should think beyond the generic concept of “someone who handles my finances.”

There may be several different jobs.

One person may be excellent at managing money. Another may understand the client’s intellectual property. Another may understand the creative industry. Another may be the appropriate person to make decisions about unpublished or unreleased work.

A great estate planning attorney can structure a plan putting the right people in charge while avoiding inherit conflicts of interests.

Copyright Outlives the Creator by Decades

Federal copyright protection can continue for decades after the author’s death. The precise term depends on factors including when the work was created, authorship and the nature of the work.

That makes a copyright very different from many assets we encounter in a conventional estate plan.

The creator may be gone while the asset continues to produce income and require management.

So “Who gets my copyrights?” is only the beginning.

We also need to consider:

• Who controls them?
• Who can license them?
• Who negotiates future agreements?
• Who monitors their use?
• Who handles infringement?
• Who receives the income?
• Who keeps the records?
• What happens when the first beneficiary dies?

And perhaps most importantly:

Does the person receiving control have the judgment necessary to make creative and business decisions about the work?

Giving someone an economic benefit and giving someone control do not necessarily need to be the same thing. Transferring intellectual property assets to a trust does not mean that you have to name one person who manages everything. A beautifully crafted trust allows the successor trustee to appoint the right people at the right time to exploit and monetize assets in a way that respects the creator’s wishes while financially supporting their loved ones.

Your Trust Is Signed. Did Anyone Transfer the Copyrights?

Signing a revocable trust does not automatically answer every ownership question involving intellectual property. Even a general assignment may not be sufficient. Taking the additional step of properly funding the copyright interest to the trust is critical.

Intellectual property requires its own funding analysis.

• What does the creator own individually?
• What is already owned by an LLC or corporation?
• What has been assigned?
• What do existing contracts permit?
• What intellectual property should be transferred to a trust?
• Would another ownership structure make more sense?
• Are assignments required?
• Are there registration or recordation issues to consider?

This is an area where estate planning counsel and intellectual property counsel may need to work together.

A trust can be wonderfully drafted and still fail to accomplish its intended purpose if the assets that were supposed to be governed by it were never properly connected to it.

What Happens to Royalty Payments After Death?

A royalty check arrives after the artist dies.

Who gets it?

The answer may depend on much more than the beneficiary provision in a trust.

We may need to determine:

• Whether the rights were owned individually, in trust or through an entity
• What the applicable contract provides
• Whether the income is payable to the estate, trust, entity or another person
• Who has authority to communicate with the payor
• Whether probate administration is necessary
• Whether multiple beneficiaries now have interests
• Who is responsible for accounting and administration

The royalty payment itself may be only the visible piece of a much larger asset.

A recurring income stream should prompt a larger planning discussion about the underlying rights producing that income.

Your Name, Image, Likeness and Voice May Have Value

My favorite area of intellectual property law is the fight of publicity. In California, all of us are famous while we are alive and on one can use our name, voice, or likeness to make money.

There is wonderful case law

• Vanna White: Sued Samsung for using a robot dressed in a wig and gown next to a game-show board, establishing broad protection against identity evasion.
• Bette Midler: Won a judgment against Ford Motor Co. after they hired a backup singer to intentionally mimic her distinct singing voice for a commercial.
• Johnny Carson: Successfully stopped a portable toilet manufacturer from selling a product using his iconic late-night catchphrase, “Here’s Johnny”

For some clients, the most commercially valuable asset may be the client.

• Their face.
• Their voice.
• Their name.
• Their persona.

California’s Right of Publicity is particularly interesting from an estate planning perspective because California recognizes protections involving the unauthorized commercial use of aspects of a person’s identity, and California law also provides postmortem protections in certain circumstances.

That creates questions that sit directly at the intersection of intellectual property, entertainment law and estate planning.

• Who can authorize commercial uses after death?
• Who should receive the economic benefit?
• Who should decide whether a proposed use is appropriate?
• Would the creator want the family to approve advertising uses?
• What about AI-generated uses of a person’s voice or likeness?
• What if the proposed use would be lucrative but completely inconsistent with the person’s values?
• What happens when beneficiaries disagree?

The ability to make money from a person’s identity raises a different question from whether making that money is a good idea.

An estate plan can provide a structure for that decision-making.

Your Agent Should Not Automatically Be Your Trustee

When I ask a creative client who should handle intellectual property after death, an agent or manager may be an obvious candidate.

Sometimes that person should have a role.

That does not mean the person should automatically serve as trustee.

Trustees have fiduciary responsibilities. They may be responsible for investments, distributions, tax matters, recordkeeping, accounting and administration for beneficiaries.

An agent or manager has a different professional role.

There may also be potential conflicts. Imagine a person who participates in negotiating or earning compensation from transactions involving intellectual property while also serving as the fiduciary controlling that property.

The solution does not have to be excluding the industry professional entirely. Instead, we can ask a better question:

Who should have authority over which decisions?

A client may want financial administration handled by one person or institution while another person provides expertise regarding intellectual property or creative decisions.

For some clients, dividing responsibilities may make far more sense than searching for one magical person capable of doing everything.

The Archive May Be an Asset. It May Also Be a Problem.

Creative clients accumulate things.

• Boxes.
• Hard drives.
• Negatives.
• Drafts.
• Sketchbooks.
• Raw footage.
• Correspondence.
• Unpublished manuscripts.
• Unreleased recordings.
• Research.
• Photographs.
• Source files.
• Personal journals.
• Works in progress.

Some may have substantial financial value. Some may have historical value. Some may have enormous sentimental value.

And some may be material the creator absolutely never intended anyone else to see.

When Gabriel Garcia Marquez died, his estate plan made it clear that he did not want his unfinished manuscript published. His sons inherited that manuscript and they published it. When my clients want their unpublished works destroyed, we include providing requiring the trustee to deliver those items to the most trusted person for destruction, and we ask the creator to have a long talk with that friend beforehand. We want the friend to understand why, to have a letter of explanation they can show the family, and the backbone to actual destroy the items.l

After the creator dies, someone may suddenly need to answer:

• Who owns the physical object?
• Who owns the copyright?
• Who can access the digital files?
• Who can reproduce the work?
• Who can publish it?
• Who can license it?
• Who can donate it?
• Who can sell it?
• Who can destroy it?
• Should unfinished work ever be completed by someone else?
• Should private correspondence become public?
• Should an unpublished manuscript be released simply because a publisher is willing to pay for it?

This is more than a financial issues. It is an issue of that word I never use – Legacy! And also control.

Build an Intellectual Property Asset Inventory

One of the most practical things a creative professional can do is create an intellectual property inventory. What an artist never wants to do is create this inventory! This is where we leverage financial advisors, IP counsel, and insurance brokers to help us help the client complete this work.

It does not need to begin as a sophisticated legal document.

We start by identifying what exists.

For each significant asset or income stream, consider:

• The asset. What is it?
• Ownership. Who currently owns it?
• Registration. Is there a copyright, trademark or other registration?
• Contracts. What agreements affect it?
• Income. Does it currently generate royalties, residuals or licensing income?
• Payors. Who sends the money?
• Location. Where are the originals, files or records?
• Professional contacts. Who understands this asset?
• Digital access. Where is it stored and how can the appropriate person obtain access?
• Estate planning. What is supposed to happen if the creator becomes incapacitated or dies?

That inventory becomes extremely valuable when the estate planning lawyer begins working with the client’s other advisors.

Questions Every Creative Professional Should Ask About Their Estate Plan

If you are an artist, writer, performer, musician, photographer, filmmaker, influencer or other creative professional, ask:

1. Does my estate planning lawyer know that I own intellectual property?
2. Does you estate planning attorney have a background in intellectual property and understand who those rights operate during life and after death?
3. Have we identified what I actually own?
4. Are my copyrights owned where we think they are owned?
5. Have the necessary assignments actually been completed?
6. Who receives royalties and other creative income if I die?
7. Who can manage my intellectual property if I become incapacitated?
8. Does my agent or manager actually have the authority I assume they have?
9. Who should make creative or licensing decisions after my death?
10. Does my name, image, likeness or voice have commercial value that needs to be addressed?
11. Who will manage my physical and digital archive?
12. Have I given instructions about unpublished, unfinished or private material?
13. Do my estate planning lawyer, IP lawyer, CPA, financial advisor, agent, manager and business manager understand their respective roles?

If several of those questions produce an answer of “I don’t know,” that is useful information.

It tells us where the planning needs to begin. No client needs to have all of the answers, working together we get to the bottom of things and determine “who is in charge and who gets what”.

Estate Planning for Creators Requires a Different Conversation

A creative person’s estate plan should not begin and end with a list of financial accounts.

The career itself may contain assets.

The work may have value long after the creator dies.

• Income may continue.
• Contracts may continue.
• Copyrights may continue.
• A name, voice or likeness may continue to have commercial value.
• An archive may become valuable.

And decisions may need to be made by someone who understands more than money.

My years working in television and practicing intellectual property law changed the way I see these estate plans. My experience as a copyright litigator taught me to pay attention to ownership and rights. My estate planning practice adds another question:

Who has authority when the person who created all of this is no longer able to make the decision?

For creative clients, that question deserves an answer long before anyone needs to use it.

Frequently Asked Questions About Intellectual Property and Estate Planning

Can a copyright be transferred to a revocable trust?

Copyright interests can generally be transferred, but the appropriate ownership structure and method of transfer depend on the particular rights, contracts and circumstances. Simply signing a revocable trust should not be assumed to transfer copyright ownership. Creative clients should have their estate planning and intellectual property counsel review ownership and any required assignments.

What happens to copyright when the creator dies?

Copyright does not necessarily terminate when the creator dies. Depending on the work and applicable law, copyright protection may continue for decades. Copyright interests can therefore become important estate or trust assets requiring ongoing management.

Can royalties continue after someone dies?

Yes. Royalties, residuals and licensing income may continue after death. Who receives and controls those payments depends on ownership of the underlying rights, contracts and the creator’s estate planning and business structures.

Can my manager handle my intellectual property if I become incapacitated?

Do not assume so. A manager’s contractual authority is not necessarily the same as authority under a power of attorney, trust, business entity or other legal instrument. The client’s documents and contracts should be reviewed to determine who can act and what that person can do.

Should my agent or manager be my trustee?

Possibly, but industry knowledge alone does not make someone the appropriate trustee. Fiduciary duties, financial skills, family dynamics, potential conflicts and the nature of the assets should all be considered. A client may decide that different people should handle financial administration and creative or intellectual property decisions.

Does a revocable trust automatically own my copyrights?

Not necessarily. Trust funding should include a specific review of intellectual property ownership. Assignments or other steps may be necessary depending on the asset and ownership structure.

What happens to my name, image, likeness or voice after I die?

The answer depends on applicable law, contracts and the particular rights involved. California recognizes certain postmortem rights of publicity. People whose identity has commercial value should discuss these rights specifically with qualified counsel rather than assuming a conventional estate plan addresses them.

What should an artist include in an estate planning asset inventory?

In addition to conventional financial assets, consider copyrights, trademarks, royalty and residual streams, licensing agreements, business entities, unpublished and unreleased work, physical and digital archives, professional contracts, digital accounts and commercially valuable rights associated with name, image, likeness or voice.

Do creative professionals need a special kind of estate plan?

They may need an estate plan designed around assets and issues that do not arise in every estate. The important distinction is not necessarily the name of the documents. It is whether the planning addresses intellectual property ownership, continuing income, incapacity, fiduciary authority, contracts, archives and the people who should control creative assets.

When should a creative professional talk to an estate planning lawyer?

Ideally, before a crisis. A particularly good time is when the creator begins earning meaningful royalties or licensing income, acquires valuable intellectual property, forms a business entity, signs significant entertainment or publishing agreements, develops a valuable public persona, has children, accumulates an important archive, or realizes that the existing estate plan never addressed the career.