Who owns posthumously released music?

Written By: Ciana Custino-Phillips

Musicians who write and produce their own music often copyright their work to have complete control over its use and profitability. Copyrights allow artists to distribute, perform, and publicly display their work and subsequently profit from the music they create while preventing others from using or reproducing their work. [1] Copyrighted material is protected for seventy years after the artist’s death; however, many questions tend to arise when artists pass away and have their music released posthumously. [2] This exact situation occurred recently when Malcolm James McCormick, known professionally as Mac Miller, tragically died in September 2018, in the height of his career, only weeks after his fifth studio album released. [3]

McCormick was an established rapper, singer, songwriter, and record producer. By the age of twenty-six, McCormick had amassed millions of fans and become known for championing the genre of melodic hip-hop on several of his gold-certified albums. [4] His death was shocking and unexpected, but his fans were even more surprised when McCormick’s sixth studio album was released posthumously on January 17, 2020, after his good friend and music-making partner, Jon Brion, finished producing the records Miller created prior to his death. [5] Although it is clear that McCormick owns all of the work that he released and copyrighted prior to his death, his most recent release begs the question, who has ownership of McCormick’s intellectual property and who will be receiving royalties from his posthumous album release?

Copyrights and royalties are considered personal property and after one’s death, personal property can be transferred through intestate succession or assessment in trusts or wills. [6] Trust and wills allow artists to distribute their assets to various types of beneficiaries including individuals, charities, or even museums. [7] If an artist has not created a will or trust, their property can be obtained by their spouses or blood-relatives through intestate succession. [8]

In this case, prior to McCormick’s death, he had made the responsible decision of putting his assets in a revocable trust. [9] Revocable living trusts are trusts that can be adjusted as needed throughout the creator’s lifetime and allow the trustor to transfer property to their beneficiaries. [10] Although there are rumors that McCormick left all of his assets to his mother, father, and older brother, there is no way for the public to be sure, since revocable trusts are private, as opposed to wills, which are accessible to the general public. [11] Wills are common among most people; however, musicians have been creating revocable trusts in place of wills with an increasing regularity. [12] It allows them to protect their assets, assign who will be in charge of their property after their death, alter the trust as their financial circumstances change, and keep their assets protected from the public. [13]

Unfortunately, McCormick’s music career was tragically shortened, but his fans can rest easy knowing that his estate is in the control of the people he hand-selected to control his career after his death. And thankfully, many artists are following in his footsteps by protecting their work through revocable trusts.

[1] 17 U.S.C. § 106 (2019).

[2] 17 U.S.C. § 302 (2019).

[3] Brendan Klinkenberg, Mac Miller Dead at 26, Rolling Stone (Sept. 7, 2018, 5:25PM), https://www.rollingstone.com/music/music-news/mac-miller-dead-at-26-720756 [https://perma.cc/C8NG-D6TV].

[4] Id.

[5] Craig Jenkins, ‘Oh My God, He’s Even Better Than I Thought’ Producer Jon Brion on the gutting task of completing Mac Miller’s final album after his sudden death, Vulture (Jan 21, 2020), https://www.vulture.com/2020/01/mac-miller-circles-jon-brion-interview.html [https://perma.cc/AP7B-7D8K].

[6] 17 U.S.C. § 201 (2019).

[7] Id.

[8] Id.

[9] Sara M. Moniuskzo, Mac Miller Left Behind A Will, But Who Will His Estate Go To, USA TODAY (Sept. 15, 2018, 1:29PM) https://www.usatoday.com/story/life/people/2018/09/15/mac-millers-left-behind-but-who/1316618002 [https://perma.cc/YH6H-SM8J].

[10] Greg Iacurci, Deceased rapper Mac Miller was 26 and had a will – similar to that of Michael Jackson, Investment News (Sept. 21, 2018), https://www.investmentnews.com/deceased-rapper-mac-miller-was-26-and-had-a-will-similar-to-that-of-michael-jackson-76162 [https://perma.cc/LQ7G-TVZX] .

[11] Id.

[12] Id.

[13] Id.


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