The power of attorney, power of enduring guardianship,

The advent of digital technologies has impacted on creatives
in many ways, allowing them to provide a greater legacy for both their
audience, society and family members.

Traditionally
a person’s estate consisted of a will, trusts, power of attorney, power of enduring
guardianship, life insurance policy and the like, together with any property owned
at the time of death. In the days of paper documentation, most bank accounts
and physical assets could be readily accessed by an estate executor.

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However, with the advent of digital technologies bank
accounts are in the cloud and additional non-physical assets are being created that
should not be overlooked in your estate planning. Any copyright that exists in digital
assets extends for 70 years after death. 

Musicians, cinematographers, still photographers, composers,
writers, designers, directors, producers all have digital assets which may
comprise a significant portion of their estate. In all cases it is better to plan now and keep an
accurate records of what you have produced during your lifetime, whether it is
published or not.

For some creatives, digital assets may be easily identified.
For a stills photographer it might be their photographic gallery; for writers, unproduced
manuscripts and drafts, and musicians, recorded or unpublished music stored in
the cloud or on a digital storage device. But digital assets could also rest in
websites, blogs, Facebook posts, Twitter, Snapchat, Instagram or other social
media accounts. Depending on the volume of material in these accounts, they can
prove a valuable asset in case of a biography or other reproduction.

It shouldn’t be assumed that it is easy to obtain this
information after death, as without accurate details of usernames and passwords
it may be impossible for an executor to establish ownership of the digital
asset. Further, in some cases the copyright may be transferred to the service
provider upon death. Facebook has for some years offered two choices: either
deletion of the account permanently upon the family’s request, or converting the account into a
memorial profile.

Some
aspects of your digital estate may be tied to bricks and mortar businesses such
as online access to bank accounts and shareholdings. Again, it is
crucial to provide key information that may be required by the executor in
settling the estate. Creatives should consider getting a digital plan in order so
that family members and managers, if appropriate, can access information more
easily.

A plan
will assist them to:

·        
Locate any accounts you have online;

·        
Collate and catalogue digital property;

·        
Determine if your digital property has any financial value or should be
transferred to an archive such as the National Film and Sound Archive;

·        
Arrange distribution of transfer of assets to beneficiaries or third
parties;

·        
Access accounts in order to prevent identity theft or continued
posting in case of Facebook or other social media accounts;

·        
Identify what material may be used in any sequel
or further exploitation of rights, such as fan pages, director’s cuts, or
biographies;

·        
Identify utilities, bank accounts and other
accounts that have been managed online during your life that would be required
to be terminated such as car registration, gas and electricity, telephone,
mobile accounts and insurance.

These simple steps should assist your digital estate
planning:

·        
Make a list of all digital assets you own and how to access each one,
including all creative assets, computer passwords, hardware, external drives,
flash drives, digital music players, e-readers, digital cameras and other
digital devices such as smartphones and tablets.

You should also include information stored online, whether it be via Dropbox,
Vimeo or in the cloud. You should also list any associated passwords and
usernames, online accounts, email communication, social media accounts,
shopping accounts, photo/video sharing, gaming accounts, storage accounts,
websites, blogs that you manage and domain names.

This list should cover off
on intellectual property both published and unpublished. You should also put in
place a plan to notify rights collecting associations upon death so that any
royalties to be collected on produced material may continue to flow to your
estate.

·        
Create a plan of what you wish to have happen to
those assets. This can be created either with your lawyer or manager, agent or
by you individually, and will decide which family member or colleague would be
the best person to exploit those assets. If those assets are not to be dealt with until your
death, what happens to them?

·        
Name the digital executor in your will, in the
same way a literary executor used to be named for authors. Although probate law
in Australia does not recognise the term literary or digital executor, there is
a precedent for a literary executor to be appointed along with an executor.
They can either be the same person or a separate person, and can assist with
the management of the creative estate.

It should be noted that the acknowledgement of the digital or literary executor
is not binding on the executor of the estate nominated in your will, as they
are the person entrusted with the legal power to distribute your estate. However,
your will can still nominate a separate person as a digital or literary executor
and instruct the executor to consult with them.

·        
Store the information in a secure and accessible
location such as with your lawyer, online storage services, or alongside your will. 

·        
Finalise your will to include the digital estate
planning that you have done.

@box:

Fahey Rosenblum Lawyers and Mediators

http://www.perkinsfahey.com/

Phone: 02 8244 6800

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