Your estate plan is designed to dispose of any property you own at the time of your death. Property can include not just financial assets, real estate, and tangible items, but also the legal rights to certain works you have created or invented. These intellectual property rights can be quite valuable, which is why it is important to include them in your will or trust.
How Intellectual Property Works
There are three broad categories of intellectual property protected under federal law: copyrights, patents, and trademarks. Each follows different rules and can impact your estate planning in varying ways.
A copyright refers to a person’s rights “in original works of authorship.” This includes not just traditional “literary works” like books, but also musical compositions, motion pictures, and even architectural designs. Basically, any original work that is in a fixed form and capable of reproduction may be under copyright. So, for example, if you produce a series of popular YouTube videos, that is subject to copyright the same as if you wrote a 400-page novel.
Unlike patents or trademarks, a copyright automatically exists once you produce your work in fixed form. Although there are benefits to registering a copyright with the federal government, it is not legally required. The copyright term is also quite generous. Any copyrighted work you author is protected, under current United States law, until 70 years after your death. So for a person dying in 2016, any copyrights they enjoy will continue in full force and effect until 2086.
You can bequeath a copyright in your will or trust like any other property. In some cases there may be financial reasons for doing so—for example, if you expect future royalties on a book. But even if your copyrights have little present commercial value, assigning them to someone else can help protect against unauthorized copying.
A patent is a limited property right granted to the inventor of an invention. Unlike copyrights, patents are not automatic. You must submit your invention to the U.S. Patent and Trademark Office (USPTO), which reviews your claim and decides whether patent protection applies. Once granted, a patent only lasts for 20 years. All patents are assigned a unique number by the USPTO, so if you decide to bequeath a patent in your will or trust it is a good idea to use this number to avoid any confusion.
A trademark is the right to use a particular word or mark in association with a commercial product or service. Most commercial brands—i.e., Coke, Microsoft—are trademarked. But even a small business owner may register a trademark to protect his or her own brand.
In contrast to copyrights and patents, trademarks may last indefinitely, so long as they are in continuous use and the holder files periodic registration forms with with the USPTO. So if you use a trademark in association with a business, it is not enough to simply leave it to someone in your will. You must also ensure the underlying business or product associated with the trademark continues.
Need Estate Planning Advice?
You may have many questions regarding the disposition of your intellectual property rights in your will or trust. An experienced San Diego estate planning attorney can help address those questions. Contact the Law Office of Scott C. Soady in San Diego if you need to speak with someone today.