IP Education: IP Assets & Estate Planning
For many artists, part of the intention for a piece of art is to live beyond its creator. Similarly, inventors and business owners are likely hoping to leave behind some kind of legacy.
Yet, surprisingly, many neglect to make a posthumous plan for their works – intellectual property assets need be managed as much as financial, real estate, and physical properties. Perhaps the hesitation to act comes from uncertainty about what to do. To help assuage this uncertainty, I will share some basic considerations for your intellectual property assets as you build an estate plan.
Inventory and Ownership
Before you make any big decisions about trusts or wills, step back and take stock of the intellectual property assets in your name.
Did you copyright a short story you wrote years ago? Have you registered a trademark for the logo of your business? Write down a list (or create a spreadsheet) of all the copyrights, trademarks, trade secrets, and patents that you or your business own.
This is also the time to define ownership. You may have forgotten since your application, but perhaps a business or creative partner carries joint ownership of a trademark, patent, or copyright license with you. This means the fate of the creation after your passing is not within your sole discretion – conversations will need to be had.
Value and Remaining Life of the Assets
After you build the complete picture of your intellectual property assets, you will want to enlist the help of an IP attorney or other suitable professional to estimate their value. This process really can be complex, since the value of creative works changes over time based on a myriad of market, audience, and economic factors.
Another variable piece to consider: the remaining life of the assets. This addresses how long the registration protects your work. For patents, protection lasts only a set amount of years based on the type of patent, when the patent registration was issued and if maintenance fees were paid. For copyrights, the registration if owned by the author is valid for the term of the life of the author plus 70 years or if it was a work for hired owned by a business the term is 95 years. Trademarks can technically last an infinite amount of time, if the business continues to use the trademark as a source identifier. Trade secrets are going to last as long as you keep the secret.
All of these different stipulations would need to be communicated to the person who takes on the intellectual property assets.
Name an Executor and Clarify Intentions
This is one of the most important decisions of your estate plan. Somebody must actually carry out your desires – for example, renewing patents, enforcing copyrights, or continuing the use of trademarks. To get an idea of how general IP inheritance works, you can consult the American Bar Association here.
But your executor’s tasks will likely surpass IP maintenance. You can specify intentions for how you would like your artwork or inventions to exist in the world after your passing. For instance, perhaps you prefer that paintings be donated to a museum. You might compel your inheritors to fight even the smallest infringement against your copyright, trademark or patent. Or maybe you would like your children’s music to be played in a children’s hospital ward for free.
The powerful part of an estate plan is that it deeply motivates you to reflect and be deliberate about how your legacy lives on. Yes, it may take an attorney, some paperwork, and the discomfort of contemplating mortality, but it is well worth it for your own peace of mind and generations to come.Share