Copyright And Wills
This fact sheet provides information about:
- reasons for an artist to have a will;
- what a will can say, copyright arrangements that can be set out in a will;
- where to find a sample will;
- how to change a will.
In this information sheet:
- Why should artists have a will?
- What can a will say?
- Sample will - The Arts Law Centre of Australia
- How to change a will
In many cases, copyright lasts the life of the creator plus 70 years. For example, copyright in a painting generally lasts for 70 years after the end of the calendar year in which the artist has passed away.
It is important for artists to consider who will manage and make important decisions about their copyright after they pass away as well as who will benefit from their work after they pass away. Often artists prefer their families to make decisions about their copyright and to financially benefit from dealings with their work after they are gone.
A will is the legal document used to name the people or organisations we want to pass our property to when we pass away. This includes instructions on who is to receive any specific item of property. It can also be used to express a preference as to who should be the guardian of a child and any preferences about funeral rites and burial or cremation.
Artists can arrange for their copyright to pass to their family, friends or an organisation by using a will. If an artist does not write a will before passing away, their copyright will be transferred according to the rules of intestacy (which are the rules that apply if a person does not leave a will, set out in the laws of each State and Territory). The laws set out a fixed order for certain of the artist's "next of kin" to inherit the artist's property, including copyright, if a valid will is not found after the artist died. If there is no surviving next of kin as defined in the State laws, the property goes to the State government.
If you own copyright and you would like to direct who is to have control over it and who is to benefit from it after you pass away, it is best to make a will. By using a will, an artist can also bequest copyright in different works to different people or organisations.
The Arts Law Centre of Australia has developed a sample will for Indigenous artists. The sample will is a good place to start when considering how to deal with your copyright when you pass away. Check the sample will, and contact the Arts Law Centre of Australia or a legal advisor for further advice before drafting your will.
Once a will is drafted it can only be changed in certain ways. If any changes need to be made, always talk to a lawyer, who will draft the new document and make the required changes.
If a will needs to be changed but is not changed in the correct way, the altered document may be invalid with the result that there is no will left at all.
Need more help?
If you have questions about any of the topics discussed above please contact Arts Law.
The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.
While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet.
© Arts Law Centre of Australia
You may photocopy this information sheet for a non-profit purpose, provided you copy all of it, and you do not alter it in any way. Check you have the most recent version by contacting us on (02) 9356 2566 or tollfree outside Sydney on 1800 221 457.
The Arts Law Centre of Australia has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.