What you should know about copyright and contesting a will

Published 20 Dec 2016

When a will involves a deceased person’s original work, it has certain conditions surrounding it that are unique to this type of estate. Copyright applies to a range of different types of work, including visual art, theatrical work, film, audio recordings, designs and literary works. If your family member was an artist and you feel you have not been fairly represented, it’s important to have a clear understanding of copyright law when looking into contesting their will.

Copyright continues after death

An artist might not just leave savings, assets and investments to the beneficiaries of their will, they can also leave their works. Art of all kinds can be very valuable and even increase in worth over time, but if you receive a piece of original will as part of your inheritance, you need to be aware that there will be some restrictions to what you can do with it. Copyright doesn’t just apply while the creator of the work is alive, it prevails for a period of time after their death as well.

As a general rule, copyright continues to be in place for 70 years after the individual’s death. However, there are some exceptions depending on the publishing state of the piece of work. For instance, the State Library of New South Wales points out that for work published after the death of the author, the copy extends for 70 years following the year of publication, and for unpublished works it remains indefinitely until publication takes place.

The physical work and the copyright are separate entities

Another important factor to understand before you dispute a will involving a creative work is that the copyright and the physical work itself are considered separate entities in a will. This means that just because your loved one left you a piece of art, it doesn’t necessarily mean you have the rights to it as well.

The Arts Law Centre of Australia reveals that artists can choose to give the physical piece to one person, and the copyright to another, split copyright between multiple beneficiaries, and they can even stipulate exactly what the recipient can do with the work. For instance, while your loved one may have left you their original work in their will, they could prevent you from selling it on. This can be a source of will disputes, as beneficiaries may feel that the rights they have been given are unfair, or they may disagree with the copyright holder.

Whatever the case, contesting a will that involves copyright can be a complicated matter, so it’s essential to seek advice form an experienced legal professional.

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