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.
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.
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manuscripts and drafts, and musicians, recorded or unpublished music stored in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
aspects of your digital estate may be tied to your bricks and mortar business,
including online bank accounts and shareholdings. Again, it is crucial
to provide key information that may be required by the executor in settling the
Creatives should consider getting a digital estate plan in
order so that family members and managers, if appropriate, can access
information more easily.
A plan can assist them in finding accounts you have online, cataloguing
your digital property and distributing assets to beneficiaries or third parties.
It can also assist in establishing if your digital property
has any financial value or should be transferred to an archive, such as the National
Film and Sound Archive (NFSA), and in identifying what material may be used in
any sequel or further exploitation of rights, such as fan pages, director’s
cuts, or biographies.
A digital estate plan may also help in preventing identity
theft from open online accounts or continued posting in the case Facebook or
other social media. It can also assist in identifying which accounts which need
to be terminated after death, like car registration, gas and electricity,
telephone, mobile accounts and insurance.
These simple steps should assist your digital estate
Make an inventory of all digital assets you own
and how to access each one, including any associated usernames and passwords.
This list should include creative assets
stored on physical hardware like external or flash drives, digital music
players, e-readers, digital cameras, smartphones and tablets, as well as those stored
online, for example in Dropbox, Vimeo or in the cloud.
Any websites, blogs, domain names you own
may be considered a digital asset, as are your online accounts, social media,
email as well as online accounts such as
This list should cover off on intellectual property both published and
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 in order to decide which family member or colleague
would be the best person to exploit those assets.
You should also put in place a plan to notify rights collecting
associations, such as Screenrights, upon death so that any royalties to be
collected on produced material may continue to flow to your estate.
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.