Let’s start with five fundamental concepts:


  1. Copyright protects original expression.
  2. To qualify for copyright protection, that original expression must be “fixed in a tangible medium.” (For example: painted on canvas; sculpted in stone; captured on film; written on paper.)
  3. The tangible media (the canvas; the stone; the film; the paper) are, for estate planning purposes, “tangible personal property.”
  4. Copyright rights that attach to original expression are, “intangible personal property.”
  5. The intangible copyright rights and the tangible media are completely separate assets that need to be disposed of independently and with particularity, in an estate plan.


What does this have to do with Digital Property?


This. Digital Property does not include underlying copyright rights.


“Digital property” means an electronic record in which a person has a right or interest. “Digital property” does not include underlying property or an underlying liability unless the property or liability is itself an electronic record. Wis Stats 711.03(10)


Is original expression that’s been fixed solely in digital format, an “electronic record?” Maybe. Wisconsin’s Digital Property law does not define “electronic record” but it does define “electronic” (Wis Stats 711.03[11]) and it does define “record” (Wis Stats 711.03[24]). I can see arguments on both sides, but for now let’s just assume the answer is yes: the fixation of original expression in digital format does qualify as an “electronic record” and, consequently, is “digital property” under Wisconsin law.


Fine. That’s not even the point.


The point is this: Whether or not the expression, as fixed, qualifies as digital property, the underlying copyright most certainly does not.



  1. Client leaves “digital property” (as defined above) to Son.
  2. Client leaves either “intangible personal property” or “copyrights” or (if otherwise silent) “residue” to Daughter.
  3. Client’s Instagram is full of Client’s original, enormously valuable photographs.


What does Son get? Access to the Instagram account and, arguably, a bunch of “ones and zeros” that embody Client’s original expression.


What does Daughter get? The copyrights.


How does this play out? Son has no right to reproduce, adapt, distribute, or display the photographs. In short, they are worthless to him. Daughter does hold those rights, but if she can’t get into the Instagram account to access the files they’re potentially worthless to her, too.


Estate planning must address as separate assets: a.) the tangible property that embodies copyrightable work; b.) the intangible property (copyright) that attaches to original expression; and c.) digital property as it is specifically defined under the law of the state.


They are apples, oranges, and spinach.