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Intellectual Property in the Estates Context

The creative works of deceased writers, musicians and other artists can continue to generate revenue for many years after their death. We have previously blogged about the protracted fights that can emerge over the revenue generated by these works. However, the intellectual property rights of a testator can often be overlooked during the estate planning process.

It is essential for drafting solicitors to be able to knowledgably advise their clients about intellectual property issues. It may also be prudent to obtain the advice of a lawyer who specializes in intellectual property law to ensure that the Will adequately addresses any possible rights the Estate may have after the testator’s death.

tumblr_o3z5l87aho1slhhf0o1_1280For example, the Will should clearly set out how royalties earned on a testator’s copyrighted work will be administered and distributed. With respect to copyrighted work in Canada, section 6 of the Copyright Act provides that copyright subsists for the lifetime of the author, the remainder of the calendar year in which the author dies, and an additional term of fifty years following the end of that calendar year. Thus, a testator’s copyrighted works can continue to generate significant revenue for many years after the testator’s death.

However, beyond ensuring that the profits earned are distributed in accordance with the testator’s wishes, a well-drafted Will can also help ensure that the testator’s artistic legacy is preserved. Given the rights and control conferred upon a beneficiary of intellectual property assets, the heirs of such works can help the testator’s work flourish and find new audiences well beyond their lifetime.

A great recent example of this is the story of Lucia Berlin, whose recent short story collection, A Manual for Cleaning Women, has topped bestseller lists and received the honour of being named one of the top ten books 2015 by the New York Times Book Review.

But, as set out in this touching memoir by one of her former students and friends, Ms. Berlin retired in 2000 and moved to a trailer park in Boulder, Colorado. She subsequently moved into a converted garage in Los Angeles in order to be closer to her son. Ms. Berlin passed away in 2004, on her 68th birthday.

More than eleven years after her death, Ms. Berlin is being heralded as a lost genius and “the greatest American writer you’ve never heard of.” Keen-eyed readers will note that many of the photographs that accompany articles about Ms. Berlin’s work are published courtesy of the “Literary Estate of Lucia Berlin LP.”

Thank you for reading.

Umair Abdul Qadir