Wanting to pass photos of loved ones to family members after their death is understandable. Whether in tangible or electronic form, looking back on photos is a way to remember our loved ones and the happy times we shared with them. However, our loved ones may not have envisioned their photos posted on the internet, uploaded to social media sites and shared with people they never met.
If you are in possession of photos of your ancestors or other deceased loved ones, ask yourself whether they would really be okay with their likenesses “living on” in cyber space, and perhaps viewed by many more people than ever intended. If your deceased loved one posted “selfies” on Facebook multiple times every day, the answer may be easy. If, on the other hand, they were upfront about avoiding social media in the name of privacy, the answer may easily fall in the opposite direction. If they were somewhere in between, it is a closer call. Here, confusion could have been avoided if explicit instructions had been left ahead of time.
If you want to avoid having your images posted all over the internet, steps can be taken to ensure that your photos are distributed to family members, but that your online privacy is maintained in death as it was in life. In order to achieve this result, photos can be distributed to family via your trust with the stipulation that the photos are distributed with a limited license for personal use and enjoyment, and not with a shared copyright.
The document should make clear that you do not wish for your photos to appear on the internet, and such use is outside of the scope of personal use and enjoyment. The document should further authorize your trustee to take any action necessary to have the photos removed, including contacting the service provider or initiating a copyright law suit. Of course, the copyright to the photos must also be assigned to the trust to accomplish this.
When including such a provision, it is also important to give thought to who in your life might post these photos against your wishes – if the trustee is a family member who would post these photos, for example, the purpose of the clause is defeated. Instead, you should name a separate trustee to act under this provision, or a trust protector who has the power to ensure that your wishes are followed. Doing so will allow you to retain your original choice of trustee to act for all other trust provisions. In other words, don’t count out an otherwise well qualified trustee just because he or she may post your photos online. Instead, name an additional person to handle management of the photos.
Perhaps in the future there will be a stronger method of ensuring that photos are distributed to family members, but remain solely within the family and not each family member’s Facebook friends. Until that time comes, consider taking the actions described above if you do not want your photos to appear online after your death, and if you are in possession of photos of a deceased loved one, take time to think about what he or she would want before you click “upload.”
To learn more about planning for digital assets, photos, and copyrighted assets, contact Mammel Law at 248-644-6326.