Digital Estate Planning

            I have been following the rapidly evolving world of estate planning for digital assets for some time, partially confused and concerned by the myriad of laws and  competing interest in this area.

            Part of this arose from trying to help the family of a deceased client deal with a truly awful post-mortem issue with Facebook.

            I came across an excellent article in the February issue of the Nashville Bar Journal by Nashville attorneys Jeff Mobley and Laurie Parker called “Heartaches by the Numbers:  Estate Planning for the Digital Age”.  The piece gives an excellent overview of the current positions of such companies as Facebook, Google and Twitter in dealing with the representatives of deceased users.  But the article brings up  so many other issues.  For example, what does one do with online photo albums such as those hosted by Tumblr, Instagram and Flickr?  What about online money that may be held in a PayPal account?  What about an iTunes library?  What about a domain name?  The authors really help pull all of these disparate issues into perspective.

            They also point out that at least seven states have enacted legislation  that gives personal representatives legal unfettered access to a deceased person’s digital accounts and that Tennessee is considering such legislation.

            The most helpful part of the article is the author’s suggested language for powers of attorneys and wills giving fiduciaries and executors specific authority to deal with these issues.  I plan to incorporate these clauses into my documents going forward and to recommend updates to some of my more social media active  clients.

            I’m also going to warily compile a list of my own digital assets such as they are, just to make sure that my digital presence doesn’t linger much longer than my temporal presence.  Again, my thanks to these authors for making this complicated subject seem manageable.

You Gotta Have a License

My old friend, former restaurateur and new attorney, Jody Faison has written an article for the Nashville Bar Journal explaining why and how the performing rights organizations, BMI, ASCAP, and SESAC go about licensing the public performance of music to the bars, clubs and restaurants which  provide music to the public. 

            Jody does a good job in explaining this whole process which to the new proprietor is most likely bewildering. Those who have not been raised in an environment which understands intellectual property rights are often shocked when they find out they have to pay for the privilege of providing music, live or otherwise, in their facility.  Jody also points out that unless the proprietor fits into one of the narrow examples provided by the Fairness in Music Licensing Act, there is really no way around the licensing requirement and paying licensing fees to each of these  organizations.  I can speak from personal experience from representing  bar owners in the past that the consequences of not being properly licensed can be disastrous.  I am obviously a  fan of performing rights organizations but their enforcement and litigation strategies can seem merciless.

            The article “Blueprint for the Blues: Building Strategies for Performing Rights Fees” in the November 2013 Nashville Bar Journal should be required reading for anybody going into the restaurant or bar business and  those who advise them.