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Songwriter's Guide
by Gary Schuster
Death
Responsible people prepare for death by making a Last Will and Testament,
a written document disposing of property and expressing other last wishes, such
as how to be buried. The collection of property owned by a person at death is
called the "estate". Copyrights and the contractual right to collect royalties
are part of the estate and may be disposed of by will, subject to certain
limitations that will be discussed.
If a person fails to make a will,
the state will determine how
that person's property is distributed.
The provisions of a will are enforceable by a court of law (in New York,
that court is called the Surrogate's Court) if it is shown that the will was
drawn up and signed in accordance with the requirements of the law, and that the
person making the will (the "testator") made the will freely and not under the
influence of mental disability, coercion, or other improper influence.
Usually the testator names someone in his or her will to carry out the
provisions of the will. Such a person is called an "executor". When someone dies
without a will (dies "intestate") the surrogate court appoints an
"administrator" to properly dispose of the property in the estate.
The laws of most states require certain formalities when signing a will.
These are mainly intended to reduce the possibilities of fraud, since in the
event of a controversy the testator will not be available to explain what he or
she wanted. In New York, for example, the testator must sign the will at the
very end of the document, and any writing found after the signature will not be
enforced. Also, two witnesses must sign the will, attesting that they saw the
testator sign the will, and that the testator told them that the document being
signed was a wi ll. Witnesses are disqualified if they stand to benefit from the
provisions of the will. Each state has its own laws on the making of wills, and
if a will violates the law, a court may not enforce its provisions.
If a person fails to make a will, or if a will is disqualified for some
reason, the laws of the state will determine how that person's property is
disposed of. So, if you don't make a will and do it properly, the state will
decide what becomes of your property.
In New York, for example, if the intestate dies leaving only parents and
siblings, everything will go to the parents.
If the intestate dies leaving a spouse, parents and siblings, the siblings
get nothing, the spouse gets the first $25,000 in money or personal property,
and then the spouse and parents split the remainder 50-50.
If the intestate dies leaving a spouse, parents, siblings, and one or more
children, the parents and siblings get nothing, the spouse gets the first $4,000
in money or personal property, and the spouse and children split the balance
50-50.
The law provides for various other combinations of survivors. Because most
people would not be happy with these kinds of provisions, they make wills.
Generally, people are free to dispose of their property as they see ft, but
the law has placed certain restrictions on this freedom, some of them
specifically aimed at copyrights. A general limitation in New York and many
other states is that a person is not permitted to disinherit their spouse. Even
if the person's will expressly states that the spouse is to get nothing, the
spouse has the right to "elect against the will" and claim a share of the
estate. The law exists to prevent widows or widowers from becoming destitute and
going on public assistance.
In the area of copyrights (which is governed exclusively by federal law,
overriding all state laws) there are additional "will-bumping" provisions that
will override the provisions of a will. These relate to copyright renewals and
terminations.
As for renewals, the law states that if a writer is dead when his copyrights
come up for renewal in their 28th year, certain specified persons may renew the
copyright and assume ownership of the renewal rights. These person are, in order
of priority:
- Widow, widower or children (together, as a class)
- The executor or administrator
- Next of kin
These people are not merely eligible to renew a copyright, they have a
superior right to the renewal rights against others, even if the testator leaves
renewal rights to someone else by will. For example, suppose a writer, estranged
from his family, specifically leaves all his property, including his songs, to
his "companion". If his widow and children press their claims, they
will win the renewal rights to the songs. The companion, however, will keep the
songs not yet in renewal. What this means is that royalties from songs already
in renewal will go to the widow and children, while royalties from songs still
in the initial term of copyright will go to the companion. As more songs are
renewed each year by the widow and children, more and more royalties will go to
them and eventually the companion will be left with nothing. If you think this
could lead to ugly relations between the parties, you are right.
The same rules which apply to renewal rights also apply to termination
rights, which come into play after the 56th year of copyright. In this case,
however, the class of eligible persons is smaller. Only a widow or widower,
children and grandchildren are entitled to termination rights. "Next of kin"
such as siblings, cousins, nieces and nephews are excluded, as are the executor
and administrator.
Nothing in the law requires a person to claim rights they are entitled to. If
someone who is entitled to certain rights fails or refuses to claim those
rights, a testamentary beneficiary may well continue to receive the benefit of
those rights.
To make things really scary, imagine a long living, hard living songwriter
whose first hit was in 1940 and who was still writing them into the 1980s. He
has been living with a girlfriend to whom he left everything by will, although
he is still legally married. He also has two ex-wives, as well as nine children
by his three wives and some other women also (illegitimate children have the
same rights as legal ones). If he dies this year, some of his songs would still
be in their initial term, some would already have been renewed, some would
already have been terminated, some will shortly become eligible for renewal, and
some will become eligible for termination. Now then, who is entitled to what,
and when? (This is the law school exam question from hell.)
It should be obvious that disposing of musical property is neither simple nor
straightforward. Even lawyers who specialize in drafting wills may not be fully
aware of the special rules concerning copyrights. Songwriters are best advised
not to write their own wills, and to warn their lawyers to look into the
intricacies of copyrighted musical property.
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