Photographers, Like Everyone, Fail to Prepare for Their Deaths

When science fiction writer John M. Ford died in 2006, he left behind a valuable body of work consisting of more than a dozen novels, as well as short stories and games. He didn’t, however, leave a will. Writing on his blog shortly after his friend’s death, author Neil Gaiman described the “grief and concern” this caused to the people closest to him as they saw his literary estate disposed of in a way that the writer might not have intended while he was alive.

Ford, of course, isn’t the only creative artist to die intestate leaving behind works of art, some of which may be valuable, to be distributed according to inheritance law — and it’s a problem for photographers as much as it is for writers and painters. They too create pieces of art that have both sentimental value and a real financial worth. Nor do the works have to be great pieces of art sold in galleries and bid on at auctions. A collection of images on a hard drive, some of which could generate a stream of sales in the stock photo industry or royalties every time they’re reproduced in a photography book is as much an asset as an artistic print.

Although there are no figures that show the number of artists who die without a will, the percentage of people in the population as a whole who fail to prepare for their death has been put as high as seven in ten, pushing $100 million through probate court each week in the United States. Photographers are unlikely to be any better at preparing for their future than the rest of the population.

“Many people do not plan effectively,” says Jeff Marvin, a lawyer who specializes in creative property cases. “Most people do not like to think about the subject and ignore it rather than planning for their estate.”

How Do You Divide a Photo?

The laws that govern intestacy vary from state to state, but copyrighted works such as images and writing are generally treated as property and distributed, as part of the estate, between the heirs.

That’s a situation that can cause all sorts of problems. A photographer might have created more than one family in his or her lifetime, leaving estranged children and former spouses to battle with new partners for the ownership of an artist’s work. Heirs who are minors pose particular challenges. A trust containing their portion of the photographer’s work would have to be created, but it’s not easy to divide an artist’s work and if minor heirs are in different states, a decision has to be made to name a trustee, creating a new opportunity for fresh fights, difficult negotiations and the kind of conflict that he artist could have avoided with a will.

More worrying are the unexpected consequences of any agreements hidden in previous deals and old contracts that could end up negating even the assumptions worked into estate law.

“Any number of clauses could be written in to give away the rights to the publisher or agent,” warns Marvin. “Many artists are unaware of the rights they have or have given up if they have signed a contract.”

Marvin, whose clients consist of a mixture of artists, musicians and writers as well as small businesses, spends much of his time filing trademarks and guiding artists through the copyright process. Often, the trademark agent will want to make an amendment to the application and he’ll need to manage the negotiations on his client’s behalf. Occasionally though,  he’ll run across an incident that’s at least as surprising as the accidental loss to a publisher of a copyright’s ownership on the artist’s death.

In one case, for example, a client gave a series of interviews which were published in a trade magazine. Someone took the answers and published them word-for-word in their own book. Surprisingly, although the questions were protected by copyright, it turned out that the client’s answers were not since he did not have a contract of ownership with the interviewee, something that few interviewees expect or demand.

Those kinds of legal entanglements though are rare. The most common legal problem is the sort of copyright infringement that sees images swiped from photo streams and republished on websites and blogs. That’s easily fought with watermarks, low resolutions and demands for the image to be taken down. For more serious infringements, registration with the copyright office can impose additional statutory damages on image thieves who made real money out of an artist’s work.

You Own the Photo But Who Owns the Image?

Those measure, plus a will, may go a long way towards protecting the works of a photographer but even they may not settle the issue entirely. One of the biggest lawsuits concerning the use of images started in 2005 with the sale of a t-shirt in Target showing Marilyn Monroe, and has put the children of four photographers in a battle with Anna Strasberg, the widow of Monroe’s acting coach to whom she left her estate. Although the images sit in archives owned by the photographers’ heirs, the inheritors of Monroe’s image place strict limits on how their photos can be used. One heir has described how he once made $300,000 in a usage deal with a winery. He now makes less than $10,000 a year. The court case revolved in part on whether Monroe lived in California, where the estate owns images rights, or in New York, where image rights die with the subject, allowing the photographers’ heirs the right to sell their fathers’ pictures.

Even if a properly drafted will can’t protect heirs from all legal entanglements, they can make sure that a collection of work will at least pass to the people the photographer wants to own them. And it’s not a difficult step to take. Asking a lawyer to draw up a will is relatively simple and inexpensive. Neil Gaiman has made it even easier. Prompted by the difficulties raised by his friend’s intestacy, he asked lawyer, author and Sherlock Holmes expert Les Klinger to draw up a standard will for creative types that anyone can copy and sign — or better still, take to a lawyer.

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