Estate Planning for Musicians and Artists in South Africa: Protecting Your Creative Legacy
When South African music icon Brenda Fassie, the “Queen of African Pop,” passed away, her music continued to unite people at weddings and celebrations across the country. Yet like many talented artists, she died in difficult financial circumstances. The same story played out with Mandoza, the “King of Kwaito,” whose anthem “Nkalakatha” still resonates with South Africans today. Even Solomon Linda, whose composition “Mbube” became Disney’s “The Lion Sleeps Tonight,” died in poverty while his work generated enormous wealth for others.
These tragic stories highlight a critical truth: creating music that moves people isn’t enough. Without proper estate planning, your creative legacy and the income it generates may never benefit the people you care about most.
Why Musicians Need Estate Planning
As a musician or artist in South Africa, your work has the potential to generate income long after you’re gone. Your copyrights, royalties, and intellectual property are valuable assets that deserve the same careful planning as property or investments. Yet many artists overlook this crucial step, leaving their families to navigate complex legal processes during an already difficult time.
The South African Copyright Act of 1978 provides that copyright in musical works lasts for the life of the author plus 50 years after death. For sound recordings, protection extends 50 years from first publication. This means your creations can continue earning money for decades—but only if you’ve made the right arrangements.
Understanding Your Creative Assets
Before planning your estate, you need to understand exactly what you own. In South African law, musicians typically have rights in two main categories:
Important Note on Pending Copyright Reforms
South Africa’s copyright law is currently undergoing significant reform. The Copyright Amendment Bill, passed by Parliament in February 2024, has been referred to the Constitutional Court and awaits a final ruling. One proposed change particularly relevant to estate planning is the **25-year assignment reversion provision**. If enacted, this would mean that any copyright assignments made after the law comes into force will automatically revert to the creator (or their estate) after 25 years, regardless of contract terms. This could fundamentally change how musicians’ estates manage long-term copyright ownership. We recommend staying informed about these developments and reviewing your estate plan once the reforms are finalized, as they may create new opportunities for your heirs to regain control of valuable works.
Publishing Rights:
These cover the composition itself—the melody (musical work) and the lyrics (literary work). If you wrote the song, you initially own these rights unless you entered into specific publishing or commission agreements.
Sound Recording Rights:
These belong to whoever paid for or made the recording. If you’re an independent artist who funded your own recording, you own these rights. However, if a record label paid for the studio time, they likely own the master recording depending on your contract terms.
Your estate might also include:
- Licensing agreements and the right to enter into new ones
- Royalty streams from SAMPRA (South African Music Performance Rights Association), CAPASSO, or other collecting societies
- Trademarks associated with your stage name or brand
- Digital assets including your website, social media accounts, and domain names
- Physical items like instruments, awards, or memorabilia
The Contracts That Shape Your Legacy
Many artists enter into contracts without fully understanding how they’ll affect their estate. Your recording contracts should clearly outline:
- The duration of royalty payments, including whether they continue after death
- Who owns the copyrights to your work
- Whether any work-for-hire arrangements exist
- How long licensing agreements remain valid
In South Africa, royalty payors cannot designate beneficiaries by law. This means you must specifically address these income streams in your will or trust. If you’re receiving royalties but don’t own the underlying copyright (perhaps due to a recording contract), your will should explicitly mention the royalties as an asset separate from the copyright itself.
Estate Planning Essentials for Artists
Draft a Comprehensive Will
South African law respects freedom of testation, meaning you can largely decide who inherits your assets. Your will should include:
Specific Bequests of Intellectual Property:
Clearly identify each copyright, trademark, and contract by name. Don’t assume a general clause like “all my property” will adequately address your creative assets.
Appointment of a Specialized Executor:
Consider appointing someone with experience in the music industry or intellectual property law. Managing copyrights, negotiating licensing deals, and collecting royalties requires specialized knowledge.
Instructions for Unreleased Material:
Do you want your demos, unfinished songs, or private recordings released? If not, say so explicitly. Include guidelines for how any posthumous releases should be handled.
Guidelines for Your Image and Likeness:
Technology now makes it possible to recreate performances through holograms and AI. Important legal note: Under South African law, personality rights (including rights to your name, image, and likeness) terminate at death - unlike some countries where these rights continue for decades posthumously. However, you can still express your wishes in your will about how you’d like your image and likeness used after death. While these wishes may not be legally enforceable as personality rights, they serve as important moral guidance for your estate and family. Consider also registering your name and likeness as trade marks during your lifetime, or establishing contractual arrangements that can be enforced by your estate. These provide stronger legal protection than will provisions alone.
Royalty Distribution Plans:
Outline how ongoing royalty income should be distributed. Should it go directly to beneficiaries, or would a trust provide better long-term management?
Remember: in South African law, a valid will must be in writing and signed by you in the presence of two competent witnesses who also sign. Working with an attorney ensures your will meets all legal requirements.
Consider a Trust
While wills are essential, a trust offers additional benefits for managing creative assets:
An Intellectual Property Trust can hold your copyrights, contracts, and royalty streams with specific instructions for management. This is particularly useful if your beneficiaries are minors, lack financial experience, or if you want to ensure professional management of your catalog.
A Testamentary Trust is created through your will and comes into effect when you pass away. This can provide ongoing income to your family while keeping the principal assets protected.
Trusts offer privacy (unlike wills, which become public during estate administration) and can avoid some delays in the probate process. However, they require ongoing administration and trustee fees, so discuss the costs and benefits with your attorney.
Document and Register for Royalty Collection
While copyright protection in South Africa is automatic (no registration required), you should take steps to document your ownership and ensure royalty collection:
- Keep detailed records of when works were created and fixed in tangible form
- Consider adding copyright notices to your works (© Your Name, Year) as evidence of ownership
- Register with collecting societies to ensure you receive royalties: SAMPRA for needletime rights (sound recordings), CAPASSO for mechanical rights, and SAMRO for performance rights
- Understand the procedures these organizations follow for transferring earnings to heirs
- Optional: For cinematograph films only, you may register copyright with CIPC for additional proof of ownership
Value Your Assets
Get a professional valuation of your intellectual property. This helps with estate duty calculations (South Africa charges 20% on the first R30 million of your dutiable estate, and 25% on amounts exceeding R30 million) and ensures your family understands the true value of what you’re leaving behind.
Valuation considers factors including:
- Historical royalty earnings
- Expected future income based on current popularity
- Market trends in your genre
- The remaining copyright term
- Potential for growth or renewed interest
Addressing Specific Challenges
Dealing with Estate Duty
South Africa imposes estate duty at 20% on the first R30 million of your dutiable estate, and 25% on amounts exceeding R30 million. Proper planning can help minimizethis burden:
- Consider making donations or gifts during your lifetime (though these may attract donations tax)
- Use the spouse exemption if you’re married in community of property
- Structure your estate to maximize available deductions
- Ensure life insurance policies are properly structured to cover estate costs
Planning for Intestate Succession
If you die without a will, South Africa’s Intestate Succession Act determines who inherits your property. Your surviving spouse and children will inherit according to a statutory formula. However, this may not reflect your wishes, and it can create complications for managing intellectual property that requires specialized knowledge.
Life partners who aren’t legally married won’t inherit under intestate succession, even if you’ve been together for decades. Only a will can ensure your partner is provided for.
Protecting Your Reputation and Artistic Integrity
Include provisions in your will about maintaining the artistic integrity of your work. Do you want your music used in advertisements? Are there causes or organizations you refuse to be associated with? Make these preferences known.
Understanding the legal limits:
It’s important to know that under South African law, personality rights (including the right to control use of your name, image, and likeness) terminate at death. This differs from countries like the United States where many states provide statutory posthumous publicity rights lasting 40-100 years. In South Africa, once you pass away, your estate and family cannot enforce personality rights - they cease to exist.
However, this doesn’t mean you’re powerless:
- Express your wishes in your will:
While not enforceable as personality rights, these serve as important moral guidance for your family
- Register trade marks during your lifetime:
Your name, stage name, logos, and distinctive imagery can be registered as trade marks, which are property rights that survive death and can be inherited
- Establish contractual arrangements:
Enter into licensing agreements during your lifetime that specify how your work and image can be used, with terms that continue after death
- Create trust provisions:
A trust can hold and manage these contractual rights according to your instructions
Your estate may also be able to claim damages if unauthorized commercial use of your identity causes patrimonial (financial) loss, though this is fact-dependent and requires proof of commercial value. Consult with an attorney about the best strategy for your specific situation.
Common Mistakes to Avoid
Assuming You Don’t Have Enough to Plan For:
Even if you’re not wealthy now, your catalog may become valuable over time. Many artists’ work appreciates significantly after their death.
Failing to Update Your Will:
Life changes—you marry, divorce, have children, or acquire new assets. Review your will every few years to ensure it reflects your current situation.
Not Communicating Your Wishes:
Tell your family and executor where to find your will, what assets exist, and what your intentions are. Don’t leave them searching for contracts or wondering about your wishes.
Overlooking Digital Assets:
Your social media accounts, streaming profiles, and online presence have value. Include instructions for managing these.
Not Seeking Professional Help:
Estate planning for creative assets is complex. Work with attorneys who understand both intellectual property law and estate planning.
Taking Action Today
The artists whose stories opened this article created music that continues to move people, but their families struggled because proper planning didn’t happen. You have the opportunity to ensure your story unfolds differently.
Start by taking inventory of everything you’ve created and own. Gather your contracts, royalty statements, and registration documents. Then speak with an attorney who understands both the creative industries and South African estate law.
Your music is your legacy. Make sure it continues to benefit the people you love, in the way you intended, for as long as the law allows.
At Benaters, we understand that estate planning for creative professionals requires specialized knowledge of both intellectual property and estate law. Our team brings experience in wills, trusts, and deceased estates, combined with an understanding of the unique challenges artists face. We work with you to create an estate plan that protects your creative legacy and provides for your loved ones.
Contact us today to discuss how we can help secure your musical legacy for the future.