Managing Your Intellectual Property Over Time
Management of intellectual property (IP) rights begins at the time the idea is created. Ownership of IP is subject to a number of factors. These include:
- Was the idea created and executed by an individual, a partnership, or a large group?
- Was the work created and licensed/sold for publication under contract or licensed/sold through the open market?
- Was the work done for hire, and if so, did the creator retain any rights?
- What rights for the work were licensed/sold, such as print, electronic, audio, and film?
- For any work licensed/sold, what are the rights of reversion?
- Were copyrights registered, and in whose name?
- Is any of the new and original work based on fair use, public domain, or a licensed property?
- Is the created work intended for commercial purposes?
- Is the intent for the work to be published? For example, many books released posthumously may have been a work the author shelved. If the author intends a work never see the light of day, that should be specifically defined.
Most writers manage their IP in one of seven ways. Writers may:
- Manage the sale, resale, and licensing of their own work.
- Form a trust to manage their literary assets. Establishing a trust requires the professional assistance of a good IP lawyer and possibly a certified public accountant. Trusts can provide tax benefits and can be passed immediately to a beneficiary when you die. But due to the expense of creating and maintaining them, they aren’t necessarily for everyone.
- Designate an attorney-in-fact to manage their IP assets in the event that they are incapacitated.
- Transfer the IP directly to another person or persons. The first step in this process is to transfer the IP to the possession of the designated recipient(s). Once the recipient(s) obtain physical possession of the IP, the legal transfer may be conducted via a notarized declaration of intent.
- Form a Limited Liability Company (LLC) or Partnership to own and manage the IP assets.
- Release certain rights to one or more works under a Creative Commons license.
- Renounce all rights to one or more works under an anti-copyright notice or copyright waiver.
Your will provides the broad outlines of how your IP will be handled after your death. Here are some of the more popular options:
- Your beneficiaries can manage the sale, resale, and licensing of your work.
- Your executor or literary executor can manage the sale, resale, and licensing of your work on behalf of your beneficiaries.
- A trust, whether pre-existing or established under your will, can continue to manage your literary assets for the beneficiaries of the trust.
- You, or a trust that you establish, can transfer the rights to your intellectual property to a company, nonprofit organization, educational institution, religious institution, charity, or one or more individuals.
- You can release your intellectual property into the public domain.
All of these options require a will, and most require the assistance of a good lawyer—even for releasing your intellectual property into the public domain prior to your country of residence’s statutory date of release. It’s also useful to remember that a will is a broad-brush tool. It disposes of your assets, and generally speaking, it doesn’t get into particulars—unless a “testamentary” trust is created by the will.
A trust, or an entity like an LLC, is a much more complex and versatile tool, and is generally the most effective way to manage your assets over an extended period, before and after your death. If you don’t want or need to create a trust, but want to provide your literary executor with detail concerning your assets that would otherwise clutter up a will, you could use a Letter of Instruction, but such a letter isn’t a legal instrument. It’s a guide, not a command. Nevertheless, the easier you make it to use, the easier it will be for your survivors to follow.
No matter how you desire to distribute your assets, consult an experienced IP attorney and an estate attorney, so that you can develop a clear and comprehensive plan. Each IP asset comes with a bundle of rights, some of which may have been transferred, while other rights have been retained. Transferred rights are often the subject of complex contracts, most of which have not been drafted by you; the operation of their certain terms and conditions may not be apparent to anyone other than an experienced attorney. Moreover, each IP asset is subject to various laws and regulations that affect it in various ways, including its lifespan and alienability. Some transferred rights may terminate as a matter of contract and others as a matter of statute and revert to your estate or to one or more of your beneficiaries.
Finally, in estates where there are multiple beneficiaries, you should consider including language discouraging each beneficiary from attempting to challenge your estate plan. The heirs of John Steinbeck and the heirs of the heirs have been fighting in the courts over who owns the copyrights to his work for over fifty years. The litigation has cost his family millions, not just in legal costs but in the sale of rights to films, series, and other derivative works that have not be been made in the years since his death. What’s more, it cost them time. Regardless of who the courts decide owns Steinbeck’s copyrights, their ownership will expire in 2039 when his work passes into the public domain.