Digital Estate Planning

I just finished reading an interesting article by an attorney named Scott Zucker on “Digital Estate Planning” for clients.  Coincidentally, I had been thinking about similar issues lately as I considered  the implications of some of my deceased friends’ Facebook pages.  I know this sounds either morbid or just plain strange but think about it for a minute.  Do you want to have some control over what happens to your online presence after you pass away? 

                I am going to resist the urge to start discussing William Gibson novels and just point out that Mr. Zucker expands the discussion to an examination of what he terms “digital assets” which he defines as “any online account that requires a user name or password” or “any files stored in places including an individual’s computer, mobile phone, server…” or, I imagine the all-pervasive “cloud”. 

                We all probably have a larger online presence than we actually think we have; from websites to social media, iTunes accounts, bank accounts and bill paying.  Zucker suggests that the individual who is thinking about estate planning should prepare a list of each of these accounts with the password and his or her intentions regarding the account for his executor or estate administrator.

                Obviously this is going to involve gaining an understanding of each of the major sites’ terms of service and ultimately involving a lot of work and a lot of hassle, but I can understand the benefits.  For example, I am aware of a family who is not happy with the way people are conducting themselves on   their deceased relative orelative’s Facebook page.   They should have the right to handle this account as they see fit and with as little angst as possible. Really, there are a lot of issues to consider once you start thinking about this.

                All of these are issues that only a science fiction writer could have imagined ten years ago but I see the need to examine them as we go forward.

The Village People and Copyright Termination

You can't trust the regular media when it comes to copyright stories, they almost always get it wrong.  Case in point, the general reporting of the court's granting the Defendant's motion to dismiss in Scorpio Music S.A. v. Victor Willis (Willis was the motorcycle cop in the Village People and interestingly enough, the writer of the English language lyrics to most of the band's biggest hits including "YMCA").

Many of the stories I read reported that Willis somehow recaptured the recordings of these works.  This is not true.  As far as I know, none of the sound recording copyright termination cases have made it to court yet and presumably won't until after 2013.

However in distorting the court's holding, the media missed the case's most significant points.  The holding clarified two important aspects of the termination  provisions of the Copyright Act.  First, the Court deal with the provision "in the case of a grant executed by one author, termination of the grant may be effected by that author".  In other words, if an author executed the original copyright assignment individually then he or she does not need his co-author's approval to terminate the grant.  Reading the statute, the intent is clear but it has been confused with the law surrounding joint authorship – and this is a problem that will be encountered by group members who signed joint publishing agreements and assignments from 1978 on.  However for the individual who might have been a co-writer, the law is explicit and the holding in this case aids in the interpretation. You don’t need anyone’s permission to file your notice of termination.

Second, the case clarifies the point that upon termination, the author becomes an owner of an undivided interest in the copyright equal to the amount he originally transferred – irregardless of whatever royalty percentage he might have received pursuant to the contract.  Again this is explicit in the Statute but it is comforting to see it set out and explained by the court.

Admittedly, the facts of the Willis case are unique but then all cases have their own unique set of facts.  I think that the cases are going to begin to provide more and more guidance to the murky area of copyright terminations as we go along and they are each  fascinating in their own way.