Creating Testamentary Music Trusts in the Wills of Creatives & Musicians
Those who write and record music are among those called “Creatives.” In my experience, few Creatives think of protecting their works through estate planning. Bob Marley, Michael Jackson, Jimmy Hendrix, Pablo Picasso, Prince, and Amy Winehouse all died without a will.
Even if you have a will, it may be unclear how your musical works or sound recordings will be administered during the remainder of the life or the Creative’s copyright rights…
Remember, the length of copyrights in musical works or sound recordings is the life of the author +70 years. Oh, for clarity, “musical works” means the composition (the song), and “sound recordings” means the record (if you will). Musical works can exist outside of sound recordings, but sound recordings of music always contain musical works. For this article, I refer to musical works and sound recordings collectively as your “Musical Assets.”
Regardless of whether your Musical Assets have yielded substantial profits or remained financially dormant throughout your lifetime, and regardless of whether they are registered with the copyright office or not (as registration is not a prerequisite for copyright protection under United States law), there remains inherent value in designating ownership and administration for your Musical Assets in the years following your passing. Even if your Musical Assets do not find a widespread audience posthumously, the ability to stipulate who will oversee and manage them in the future may hold significant personal importance and ensure the preservation of your artistic legacy for generations to come.
In estate planning, this can be accomplished by drafting a testamentary trust inside your will. I name these as the “[Name of Client] Music Trust.” The term “testamentary trust” simply means a trust set up inside a will.
In broad strokes, here are a few highlights handled within a testamentary music trust:
What works will the trust cover
Who will be the trustee or trustees
What will be the purpose of the trust and how will that purpose be effectuated
Who will be the beneficiaries of the trust
How will monies earned through the commercial exploitation of the Musical Assets be distributed
How long will the trust last
Upon termination of the trust, or sooner, how may all or part of the Musical Assets be distributed, or possibly sold to 3rd parties
These are just a few points that might find their way into a testamentary music trust. The key takeaway is that if you're a creative individual it may make sense to give this some thought. I find it provides peace of mind. We are here but a short time. Our works live forever.
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