Creating a will is the definitive and legal means of ensuring a client’s final wishes are fulfilled. Whilst they will largely contain details of land and property, the last requests of some clients may concern assets that are less tangible.
For artists, musicians and business owners for example, intellectual property may represent a large portion of their assets. Intellectual property is something has been uniquely created and can include:
- Things written, created or produced
- The design or look of anything produced
- The name of a brand or product
These things can often be of great value, but significant aspects of them may be absent from the will of a client. Although the actual asset itself may be acknowledged in the will, the layers surrounding it may be forgotten. These may be in the form of protection for the intellectual property itself or value which may flow from its creation.
These include:
- Copyright
- Design right
- Patents
- Trademarks
- Artist Resale Right (ARR)
Whilst a product itself may be successful, it is often these additional layers which hold the value, as opposed to the product itself. It is therefore important that they are carefully considered when the will of a creator is being drafted. Clearly defining how they wish each aspect to be distributed, will ensure the specific requests of the client are fulfilled.
Copyright
This is a collection of rights which are automatically awarded to the maker of various creative works which non-exhaustively include music, lyrics, books, films and paintings.
Where artistic works are concerned, the copyright lasts for 70 years from the end of the year in which the creator died. Following the duration of this 70-year period, their creation effectively enters the public domain and the restrictions related to copyright no longer apply.
The right to benefit from copyright can be bequeathed. It could be left to a museum or gallery, or simply to one person specifically. If an individual has multiple works and therefore copyright within multiple sources, these could be left to different individuals. Copyright may also be split into separate shares, with different beneficiaries receiving differing proportions.
Patents
These may be used as a means of stopping other creators from making, using, or selling a similar invention. Patents are also a way of protecting machines, processes, and devices as well as inventions.
The patent can be maintained for a period of up to 20 years from the initial date it is filed.
Under section 30 of the Patents Act 1977 (PA), any patent or application is personal property and thus the rights in legal terms operate in the same way as other personal property.
A patent can therefore be vested by an assent of personal representatives and be bequeathed. Under section 33(3)(d) of the PA 1977, the death of a proprietor is classed as one of the relevant transactions, instruments, and events.
It is important that a client’s wishes in regards to the patent are outlined in their will. This is because, where an owner dies, a certified copy of the letters of administration or probate is required. The register where the patent is documented will need to be updated in relation to its new owner; this is known as an assignment.
Where the beneficiary and executor are the same person or the beneficiary is in line to be the new owner, a copy of the will or an executor signed statement may be needed.
Trademarks
This is a legally enforceable way of distinguishing a business and the products within it from competitors in the market. Trademarks can be in various forms and commonly consist of letters, words, shapes, or signatures.
If an owner continues to want to use a trademark, the rights can last for an indefinite period of time. However, trademarks have a term of 10 years and so must be renewed when this period is complete.
Under Section 2(1) of the Trademarks Act (TA) 1994, a trademark is personal property of the respective owner. Section 24(1) of the TA 1994 also stipulates that it can be transmissible by assignment, testamentary disposition, or operation of law in the same way as other personal or moveable property. It also states under this subsection that the trademark is transmissible both in conjunction with or independently of the goodwill of a business.
Upon death, the ownership of the trademark will therefore pass to the individual’s estate and, if they have made a will, to the relevant beneficiaries.
As trademarks can be passed independently of a business, this means the two can be left to different individuals. In order to transfer the rights of the trademark, a TM16 form must be filed with the Intellectual Property Office. This transfer of ownership is known as an assignment and is required to ensure the change is recorded in the trademark register.
Artist Resale Rights (ARR)
This right under EU law was brought into the UK in 2006 and only applies to those who died after its introduction. It means that for each time the work of a specific artist is re-sold through a professional market for over €1,000, they or their relevant successors are entitled to receive a royalty.
Under the Artist’s Resale Right (Amendment) Regulations 2011, which came into effect on 1st January 2012, the right to ARR now extends to the beneficiaries of a deceased artist. Previously to this, it only applied to artists who were still alive. In order to qualify for the ARR, the artist must be of qualifying nationality which in this case is from the UK or within the European Economic Area.
The 2011 amendments also established that the duration of the ARR lasts as long as the work’s copyright. It is important to remember however, that the two are separate and should therefore should be referred to separately.
In their will, an artist may leave their ARR to a charity or natural person.
It is recommended that for those who are eligible for the ARR make specific request in their will for how they wish it to be bequeathed. If there is no specific provision made, it will usually pass to the individual or body entitled to the copyright. If not, the royalties will go to the residuary beneficiary.
Regardless of whether a client’s estate includes intangible assets, it is important that a will is made. Otherwise, the law of intestacy will step in and could easily result in the estate being distributed in complete contrast to their wishes.
