Q: I am starting to do some estate planning. What should I do about my ASCAP royalties?

A: ASCAP can provide only general information in this area. We recommend that you consult an attorney to advise you as to your specific estate planning needs and to draw up the necessary papers. As a general matter, however, it is best to put your wishes in writing, including express provisions to deal with the disposition of ASCAP royalties.


Q: Does the Copyright Term Extension legislation enacted in 1998 affect estate planning?

A: Yes. We have taken the term extensions into account in preparing the answers to these questions.


Q: Who will receive my membership interest after I die?

A: This question goes to the heart of estate planning. If you die without a Will, state laws of intestacy will dictate who receives your membership interest (subject, of course, to the provisions of the Copyright Act). Therefore, if you wish to direct that your membership interest go to your spouse, your children, a trust, or other beneficiaries, you must prepare a Will or other appropriate estate planning documentation to set forth your wishes.


Q: Who gets my royalties if I don't leave a Will?

A: Just as in determining who receives your membership interest, if you don't leave a Will, the state laws of intestacy will determine who receives your royalties (subject, of course, to the provisions of the Copyright Act). These laws prescribe, in some cases, who will receive your royalties -- and the result may not conform to your wishes.


Q: To whom may l leave my rights in copyrighted works?

A: You can leave your rights in copyrighted works to anyone you wish. As explained above, however, the Copyright Act vests rights in certain individuals to whom you may not wish to leave rights: In such a case, we will seek authorization from those individuals to waive their rights in the event they have not already done so during your lifetime, but we cannot force them to do so.

Also be aware that where royalties are minimal, ASCAP is not able to name many successors due to the administrative burden of issuing numerous small checks. This burden only increases with subsequent generations, where individual successors may wish to divide their minimal royalties among others. In these cases, we ask for authorization either to pay one successor during his or her lifetime and then one of the other successors, or to pay all successors during their lifetimes and upon the death of a successor, to the remaining successors. Members can plan ahead by specifically stating whom they wish to receive royalties and how those royalties should be divided.


Q: Can my estate sell my membership rights and royalties?

A: Given the unique needs of the estates of writer members, ASCAP does permit the estate to sell or irrevocably assign the right to receive ASCAP writer royalties. ASCAP also permits living members to assign royalties irrevocably to a family member, living trust, or family-held company. Other rights of membership (such as the right to vote) are not assignable.


Q: I have heard l can recover my rights to copyrighted works even after they have been transferred. How does this affect my estate planning?

A: The law provides that any transfer or license of a copyright made by the writer on or after January 1, 1978 (other than by will or by operation of law) can be terminated by either the writer or by beneficiaries designated in the Copyright Act. The result is that all rights in the copyright in a work (other than a work made for hire) can be recovered, regardless of any agreement to the contrary. This termination can be exercised only as of a specified five-year window beginning thirty-five years after the transfer or license, with a notice sent 2 to 10 years before the termination takes effect.

If the writer dies, the law provides for the entire termination right to pass to the surviving spouse and children (and grandchildren by a predeceased child) or, if there are none, to the writer's executor or administrator. (Note that the Copyright Act defines a person's "children" as "a person's immediate offspring," including all adopted and nonmarital children. For all copyright-related purposes, this definition trumps any other that might apply, including any definition under a state's inheritance law.)

Thus, when planning for the disposition of a copyright on a post-1978 work that has previously been transferred, you should be aware of the possibility that the transfer could be terminated. The law governing termination rights is complex, and a copyright lawyer and estate planning expert should be consulted.


Q: I have certain "pre-1978" works that are in their renewal terms. How will they be treated when I die?

A: If you own the renewal copyrights in the works, you can transfer or otherwise dispose of those rights like any other assets. But if you or one of your "statutory heirs" assigned or licensed rights for the renewal term, there may be a way for you or certain family members to reclaim them. (Your statutory heirs after your death will be your surviving spouse and children, as a class; if there are no surviving spouse or children, your executor under your Will; and if you left no Will, your next of kin under state law.)

Here's how it works: If before January l, 1978, you or one of your statutory heirs made an agreement granting renewal-term rights in a work (other than a work made for hire), the Copyright Act allows the recapture of the last 39 years of the renewal term. You may exercise the recapture yourself if you are still alive. But if you have died, the recapture may be exercised by your surviving spouse and children (including grandchildren by a predeceased child), or, if there are none, by your executor or administrator.

This right to recapture must be exercised by following a notification procedure sometime during a 5-year window that begins 56 years after the work was first published with notice or registered. The key point is that the Copyright Act—and not any previous agreements or your Will—governs who may recapture the rights.

In addition, if that 5-year window ended on or before December 31, 1997 without the right of recapture having been exercised, you or your statutory heirs have a chance to recapture the last twenty years of the copyright term. This second option for recapture must be taken during a 5-year period that begins 75 years after the work was first published with notice or registered. (N.B. If the first window ended or will end after December 31, 1997, this second opportunity is not available.)


Q: Can I make a bequest to ASCAP?

A: Bequests may be made to The ASCAP Foundation, a tax-exempt public charitable organization under section 501(c)(3) of the federal tax law. The Foundation was incorporated in 1975 to promote and support charitable and educational programs in the field of music. The ASCAP Foundation is completely separate from ASCAP with its own Board of Directors and Advisory Board. The Foundation is dedicated to nurturing the music talent of tomorrow, preserving the legacy of the past and sustaining the creative incentive for today's creators through a variety of educational, professional, and humanitarian programs and activities serving the entire music community. For more information on any of The ASCAP Foundation's programs, or to inquire about including the Foundation in your estate planning, please call (212) 621-6219 or visit The ASCAP Foundation web site at http://www.ascapfoundation.org


Q: My relative was an ASCAP member and just died. What do I do?

A: Upon notification that a writer member has died, ASCAP advises its Royalty Department to hold royalties pending appointment of a successor to the membership. ASCAP sends out an application to be completed and returned by the next of kin. The application asks for relevant information such as the names, addresses and telephone numbers of family members and whether the member left any estate planning documents such as a Will or trust. We ask that copies of the relevant documents be furnished.

ASCAP's Estates and Claims Department then reviews the information and appoints successors to the deceased writer's membership. These appointments are presented for ratification by ASCAP's Board of Directors.

After appointment, successors are sent membership agreements and other forms to be completed and returned to ASCAP. When these documents are received, ASCAP updates its records with the new successor information. Any royalties held while the successor was being appointed and all future royalties are then distributed in accordance with the appointment.


Q: My relative was the successor to an ASCAP member and just passed away. What do I do?

A: The death of a successor is handled in a similar manner as the death of the original member. Royalties due the successor are put on hold and an application to name new successors is sent to the appropriate individuals. In formulating a recommendation to name a subsequent successor, close attention is paid to whether the original successor was given an outright grant of right or only a limited grant of right. If a successor was given an outright grant, the successor can then leave the rights to anyone he or she chooses and ASCAP will appoint subsequent successors based on the wishes of the deceased successor.

However, it is possible for a successor to be given only limited rights. For example, a husband might leave his ASCAP royalties to his wife for her lifetime and then to their children. In that case, when his wife dies, the royalties will be payable to the children, notwithstanding that she might have bequeathed those royalties to someone other than her children.


Q: Why do I need to send you a copy of the deceased member's will or trust?

A: We ask that you furnish a copy of the Will or trust to protect both ASCAP and the estate of the deceased member. Before we name successors and pay royalties to them, we want to make sure that we have appointed the parties entitled to receive such payments. The estate planning documents provide ASCAP with the proof it needs to determine the correct parties. The estate is protected because it can be assured ASCAP will not make an appointment based on a mere claim of entitlement. Likewise, ASCAP has an interest in making sure that the correct parties are named. If a claiming party can't prove that he or she is entitled to royalties, we cannot and will not pay that person.

Estate planning documents furnished in response to ASCAP's questionnaire are reviewed only for the purpose of making the proper appointments. All information submitted remains confidential and is shared only on a need-to-know basis. If there is material that is irrelevant to the disposition of ASCAP royalties, however, the family can edit out those portions of the estate planning documents so long as all relevant paragraphs remain and the meaning of the Will or trust is not changed.


Q: Can I sell my deceased relative's right to receive ASCAP royalties?

A: Given the special needs of writer members' estates, ASCAP permits the sale or irrevocable assignment of the right to receive ASCAP writer royalties. Once again, ASCAP cannot offer individual representation in these transactions.

With respect to publisher royalties, ASCAP permits its publisher members to sell their rights as they see fit. However, ASCAP can neither represent individual members in these transactions nor offer an opinion as to whether a particular transaction is fair to all parties involved.


Q: My friend or relative wrote music but passed away without having been affiliated with any performing rights licensing organization. I would like to have this music licensed through ASCAP. What do I do?

A: Write to us in ASCAP's Estates and Claims Department and tell us the name of your friend or relative and that you would like to apply for "posthumous" membership. We will then send you ASCAP's uniform application for ASCAP membership, as well as an application for posthumous election, asking for relevant information about the writer and next of kin and any supporting documentation. The documentation we will need includes evidence that the writer qualifies for ASCAP membership (for example, copies of published works or a listing of performed works) and any estate planning documents of the writer (to determine who is authorized to act on behalf of the deceased).


Q: My relative also owned an ASCAP publishing company. What do I do?

A: In the simplest situation where the original member owned a publishing company as a sole proprietorship and a sole beneficiary is named in the estate, ASCAP will name the sole beneficiary as owner of the publishing company. If there are several beneficiaries, options include naming one of the several successors to operate the company as a sole proprietorship; naming all the successors "doing business as" the publishing company, treating them as a partnership and paying royalties to a single designated party; or naming a corporation organized by the successors and paying royalties to that entity. Successors are advised to consult their attorneys in making the decision as to which organizational structure best suits their needs.


Q: What can ASCAP do if there is a genuine dispute, or even litigation, among beneficiaries over the estate of an ASCAP member or successor member?

A: ASCAP cannot become involved in the resolution of such disputes. Such disputes are matters for the beneficiaries, their attorneys, and if necessary, courts or arbitrators to resolve. ASCAP must sit on the sidelines, holding royalty payments for eventual payment in accordance with the settlement or resolution of the dispute.


Q: Does ASCAP perform estate or copyright valuations?

A: A valuation of the estate or copyrights may be required by the Internal Revenue Service to determine estate taxes due. ASCAP does not perform this service. We can, however, provide assistance in the form of a royalty history for the membership. It is our understanding that the IRS looks at royalty earnings for several years and then, in consideration of various factors, multiplies that total by some predetermined figure to determine the value of the copyrights. You might wish to engage an expert to assist you in determining the appropriate multiple. Generally, the appraiser is likely to look at the income-producing history of the copyright, or, where available, the value that the marketplace has put on the copyright or similar copyrights. Having some idea of the value of your copyrights will make evaluating your estate planning options easier, and will also enable you to predict any Gift or Estate Taxes that may be imposed upon them.