PART V: WHAT? RECOGNIZING THE ASSETS.
“An artist is someone who produces things that people don’t need to have but that he for some reason thinks it would be a good idea to give them.”
~Andy Warhol, Pop Art Pioneer
So far, this series has revealed why estate planning for artists is so essential, who should be involved in the process, and discussed how the artist can ensure their wishes for their legacy be realized. But really, WHAT are we talking about protecting? Unlike a piece of jewelry or furniture that can be easily identified and passed along to beneficiaries, the artistic assets that an artist may leave behind can be multilayered and complex.
Often the artistic assets of an artist are not adequately considered prior to death. Unless the artist client is working with an attorney experienced in estate planning for artists, the Artistic Advisor may need to be consulted to get a full grasp of the rights associated with the particular area of art. The levels of rights involved in visual art can be very different from those associated with the recording, film, and literary industries. For example, singers may have exclusive rights to songs they write by themselves; however, they often have limited rights to the recording of their songs. Further, a painting is a very tangible object. You can see it, feel it, pick it up and carry it somewhere. Songs and novels are slightly different. Although you can hear or read them, the physical CD or book is not classified as “the art.” Further, a dancer’s performance captured on film is even further removed from the actual art created by the artist.
Even with the slightest toe dipped into the intellectual property pool, it is easy to see that this is a very intricate area of the law. There are attorneys who not only specialize in intellectual property, but will also specialize even further into a particular sector of the arts. It is absolutely essential to find an attorney who is able and willing to fully explore the briar patch that is the artist client’s artistic assets.
It can be very difficult to explain intellectual property rights. The easiest way to think about the intellectual property of an artist’s assets is to break it down into four parts:
- What are the layers of the asset?
An attorney working with an artist client must first determine what art is implicated. Is there something physical, like a painting or sculpture, or more esoteric like a novel, play or song, or even less tangible, like acting. Each asset will then need to be broken down into its various layers. Novelists will have a copyright to their written word, but may have various other rights associated with published works. This is where the Artistic Advisor can serve as a valuable member of the estate planning team. The attorney will need to review any contracts associated with the particular work of art. This will become more complicated as more people are involved in creation of the art. This could come from having a writing partner or if a novel was adapted for film or theatre.
It should also be noted that in today’s digitally prevalent world, assets associated with the artist client’s body of work often include websites, social media accounts, and other digital media. Both artist clients and attorneys need to address these digital assets when discussing the artist’s estate. The law is still very much developing in this area. Accordingly, any provision included in the estate plan regarding digital presence, should be reviewed on a regular basis.
At the most basic level, an artist client must determine who should own the asset. In general, this is the person(s) who the artist client designates as the beneficiary and will receive any financial benefit from the asset and who will be obligated to care for the asset.
- Who possesses it?
Just because a designation has been made for an asset, does not necessarily mean that the beneficiary must possess the asset. Taking a painting into consideration, an artistic client could designate that it belongs to a single beneficiary, but is possessed and maintained by a particular museum or gallery. In this scenario, the beneficiary owns the painting but does not have possessory rights.
- Who controls it?
Some will argue that this is the most important right associated with intellectual property. Although a singer may have written a song, the recording label will most often have full control over use of the recording – everything from sales, to publicity, to licensing. It is vital to determine who controls each asset. It may come as a surprise, but often, someone other than the artist controls the asset.
Estate planning provides the artist client with the ability to craft a custom and comprehensive structure to help ensure the artist’s legacy. Many artists will often leave their body of work to a single person, like a spouse, including all associated rights. Depending on the success of the artist client and the extent of their body of work, and taking into consideration familial relationships and the artist’s particular circumstances, a more complex planning scenario dividing different rights to an asset may be needed to fully realize the artist client’s wishes for the legacy of their art.
Part VI of the series will contemplate both the location for and timing of an artist’s estate planning.
Photo Credits: All images are of Minneapolis actress and dancer Jolie Meshbesher.