Upon the death of a painter, the succession may encompass the physical object and specific rights over the work. In digital art, even this material coincidence is not assured. Files may be distributed across encrypted drives, servers, platform accounts and repositories; an online work may depend upon a domain that expires; a software-based piece may require libraries, credentials or external services; an asset registered on a blockchain may remain beyond reach if no one possesses the necessary keys.
The difficulty lies not merely in determining the heir. It lies in ensuring that this person can locate the work, comprehend its operation and exercise the powers received. A legally ordered succession may leave a legacy that is technically inaccessible.
Rights, data and access are not synonymous
Spanish legislation separates issues that in practice tend to be confused. Organic Law 3/2018 allows persons linked to the deceased by family or de facto reasons, as well as their heirs, to request access to their personal data from the controller or processor and, where appropriate, their rectification or erasure. This possibility is excluded when the deceased person has expressly prohibited it or when a law so establishes. The prohibition does not affect the right of heirs to access data of a patrimonial nature.
Article 96 regulates access to content managed by information society service providers. Authorised persons may address the provider to access such content and issue instructions regarding its use, destination, or erasure, within the limits established by the deceased person or by law. If the deceased designated someone to execute their instructions, that person may also act in accordance with them. In the sphere of minors and persons with disabilities, the provision contains specific rules.
This regulation, commonly referred to as a "digital will", does not convert all digital elements into a homogeneous mass nor does it supersede the law of succession. Furthermore, it does not guarantee that the service provider will surrender passwords, private keys or an operational copy of a work. It recognises powers in relation to specific services and content. Effective access will further depend upon documented intent, the status of the requester, applicable contracts, the characteristics of the service and the nature of each asset.
Intellectual property follows a different regime. As a general rule, the exploitation rights of a work last for the lifetime of the author and seventy years after their death or declaration of death, without prejudice to the transitional regime applicable to authors who died before 7 December 1987. The law also regulates who may exercise certain moral rights after death, such as requiring recognition of authorship and respect for the integrity of the work, or deciding on the disclosure of an unpublished work within legal limits.
Inheriting these rights is not equivalent to receiving all media, accounts and technical means. The right to authorise a reproduction does not, in itself, provide the master file. The power to disclose an unpublished work does not permit the opening of an encrypted drive. Holding the rights to a program does not guarantee possession of the source code, its dependencies or the environment required to execute it. Legal authority and the material possibility to act are related, yet distinct, problems.
What may remain beyond reach
A digital legacy may contain a coexistence of assets, rights, contractual relationships and simple means of access. It is prudent to distinguish between them as they do not always follow the same succession path:
- Work files, versions, production materials and documentation.
- The physical media and equipment where they are preserved.
- Exploitation rights and moral powers that may be exercised after death.
- Email, storage, platform, repository and social media accounts.
- Domains, hosting, certificates and services linked to online works.
- Software licences, libraries, typefaces and other third-party components, which may be non-transferable or require new authorisations.
- Wallets and cryptographic assets, the practical control of which depends upon the available credentials or recovery mechanisms.
- Contracts with galleries, museums, distributors, collaborators and technology providers.
The inventory must indicate not only that something exists, but what function it serves. An account may contain the sole copy of a work, serve to renew a domain or be limited to its dissemination. A computer may be replaceable or form part of the piece's behaviour. A key may open a file, administer an infrastructure or permit the disposal of assets. Without this distinction, the recipient of the legacy may delete the essential, preserve the irrelevant or maintain services without knowing which work depends upon them.
Contractual conditions merit separate review. Some accounts and licences are personal, non-transferable or terminate upon death. Others permit specific procedures for representatives or family members. Therefore, it is insufficient to leave a username and password: one must identify the service, the function it serves, the contractual documentation and the legitimate procedure for requesting access, transfer, download, memorialisation or closure.
It is also inadvisable to include passwords, recovery phrases or private keys directly in a will. The will may end up in the hands of various people during its processing and is not an appropriate instrument for safeguarding secrets that may change or permit irreversible operations. It should designate the responsible persons and refer to a separate, updated and recoverable custody system, with instructions on when and how it may be utilised.
Preparing a work for inheritance
Tate works with artists, studios and estates to understand the needs of artworks and guide their acquisition, storage, handling, display and conservation. Its work with time-based media further demonstrates that conservation does not consist solely of preserving a medium: it may necessitate identifying the defining properties of the work, documenting its installation, and determining which technological changes are compatible with its identity.
This method does not resolve a private succession, but it offers a useful criterion. The estate must gather sufficient information so that another person may recognise the work and act without having to reconstruct the artist's decisions. At a minimum, it should leave:
- An inventory of works, files, and locations, with versions and conservation copies identified.
- A description of the components necessary to display or execute each piece.
- Instructions regarding installation, maintenance, migration, emulation, and equipment replacement.
- A list of domains, hosting, repositories, contracts, licences, and renewals.
- The identification of essential accounts and the authorised procedure for accessing them.
- A separate custody system for passwords, private keys, and recovery codes.
- The designation of those who will manage the rights, files, technical infrastructure, and, if applicable, the collection.
- Criteria regarding unpublished works, versions, destruction of materials, authenticity, editing, and future exhibitions.
- Verified copies and a guideline for periodically reviewing the collection.
Not all works require the same degree of preparation. A final image conserved in standardised formats presents fewer dependencies than an installation connected to external servers. A generative work adds questions regarding code, seeds, parameters, and new executions. Immersive or interactive pieces may depend on proprietary hardware and ecosystems that change rapidly. The scope of the estate must respond to the actual structure of each work, not to an identical template for all.
How to organise this inventory, separate public documentation from secrets, and assign responsibilities is developed in the guide on an artist's digital archive and legacy. The conservation of algorithmic pieces further requires documenting the code, seeds, and parameters of a generative work. For works that have already entered a collection, the distinction between object, system, and permissions is examined in what a buyer of a generative work actually acquires.
Digital inheritance does not completely invert the inheritance of a physical work, but it renders a decisive difference visible. Rights can be transferred without the means needed to exercise them. Preparing the legacy requires coordinating the transfer of rights with those means, which depend on different areas: intellectual property, contracts, conservation and security. The objective is not to hand over all keys to a single person, but to create a chain of custody in which each responsible party knows what exists, what they may do, and what must not be lost.
About the open conversation
This text distinguishes the content of regulations, conservation practices, and my interpretation. It does not constitute legal advice. If you work in estates, manage an artistic legacy, or conserve digital work and wish to clarify a detail or discuss this reading, this notebook remains open: write to me.
The author's relationship to the cases
I hold digital work in my collection, the Esteban-Ruiz Collection, and these issues affect me as a collector. I have no relationship with the museums or the artists mentioned.
Sources
- Organic Law 3/2018, on the protection of personal data and the guarantee of digital rights, arts. 3 and 96.
- Consolidated Text of the Intellectual Property Law, arts. 15, 16 and 26, and fourth transitional provision.
- Tate, Conservation.
- Tate, Time Based Media Conservation.
- Tate, Authenticity, Change and Loss in the Conservation of Time-Based Media Installations.
- Tate, Preserving Immersive Media.