27 May, 2009 | Posted by: photosource

Are Your Copyrights Protected?

by Joel Hecker, Esq

A primary purpose of estate planning is to insure that assets and property are distributed as intended. Although laws vary from state to state, one general concept is universal: the more organized you are, the easier it is for your executor to marshal your assets and to make sure your wishes are honored in a timely fashion.

By the very nature of a professional photographer’s work and creative efforts, one of the most valuable assets is ownership of copyrights to his or her body of work. Although copyright is an “intellectual,” as opposed to a “physical”asset, for estate purposes, it is treated in the same way as any other asset.

Copyright is a bundle of “intellectual” property rights, which include the rights to reproduce, distribute, display, and perform the copyrighted work, and prepare derivative works based upon it. It does not include the original work which is a “physical” asset. Therefore, while you may identify your particular works as part of bequeaths in your Will, that does not necessarily include the rights under copyright to the works, which are separate assets.

Accordingly, for example, you may leave original prints, chromes or digital files to one person, and the right to make reproductions and commercially exploit the photos (copyright rights) to someone else. Moreover, the right to receive royalties on your work usually flows from copyright ownership and not from ownership of the original.

Take a moment to think about whether you know how many copyrights you own and which, if any, copyrights are registered with the Copyright Office in Washington D.C. If you cannot identify what your copyrights are, or the location of the original negatives, chromes and/or digital files from which reproductions can be made, think of the problems you will be causing your executor!


The simple answer is to get organized. This should encompass all relevant information, including a list of all your intellectual property, either by individual images, or category of work, or by job or assignment. Information about subject matter, date of creation, date of first publication, or registration information with the Copyright Office, all known uses of the images, all payments received, if it is subject to any licenses (including stock photo agreements), what royalties are due and when should be made available. The physical location of the work should also be accessible. Any appraisal or valuation that you have (or might want to obtain) would be very helpful.

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