Intellectual Property in Your Estate

“Intellectual property” includes patents, trademarks, copyrights and trade secrets. This area of the law protects “ideas and works” against unauthorized use of this property by others. If you are an author, artist, or inventor, your creations may be your most valuable assets. You are probably aware that your need to protect your rights to your creative works during your lifetime with patents, copyrights and trademarks. But have you planned for these assets after your death?

Forbes published a list of the 13 Top-Earning Dead Celebrities. The estates of these persons are making fortunes with the decedents’ intellectual property. How much do they earn? The top-earning 13 decedents earned a combined $194 million over the last 12 months. It makes dying look like a good career move. Who are they? Elvis Presley, Charles M. Schulz, Heath Ledger, Albert Einstein, Aaron Spelling, Dr. Seuss (Theodor Geisel), John Lennon, Andy Warhol, Marilyn Monroe, Steve McQueen, Paul Newman, James Dean, Marvin Gaye.

[While he hasn’t made Forbes’ list, Marlon Brando has an estate that is a big earner. Unfortunately, since he died at age 80 in 2004, his estate has been involved in 26 different lawsuits. Most recently, Brando’s trustees (producer Mike Medavoy, accountant Larry Dressler, and Brando’s former personal assistant Avra Douglas) forming Brando Enterprises to protect and manage the “Brando brand.” They brought suit against a group of companies that own the Broadcast Center Apartments in Los Angeles County for infringing Brando’s trademark name by calling a series of apartments the Brando and the Brando Den. The Trustees want to build their own planned development on an island in the South Pacific and call it The Brando.]

Dead celebrities who made the list make money (or rather their estates do) by various licensing agreements for use of the celebrities works, images or names. For example, The King (Elvis Presley, for the uninitiated) earned $52 million last year. That topped Madonna’s $ 40 million.

Albert Einstein, 4th, on the list, who died in 1955 is still earning. His estate earned $18 million last year form a deal with the Disney learning tools for infants called Baby Einstein, and licensing deals for use of his name and image with, for example, Nestle for a Japanese coffee brand and, with Kobe Bryant, a sneaker marketing campaign.

The lesson in this is that estate planners, executors and trustees need to pay special attention to a decedent’s intellectual property

Copyrights protect expressions of ideas such as literary works, computer programs, musical works, fine art works, audiovisual work and architectural works. A copyright gives the owner the right to reproduce the work, distribute copies to the public, and the right to publicly display or perform the work. For works created after 1978 copyright lasts for the life of the author plus 70 years. The author, or if deceased, the author’s widow or widower and children or grandchildren may terminate all transfers or licenses of the renewal copyright or any right under it (for pre-1978 copyrights) at the end of 56 years from the date the copyright was originally secured and recapture the last 39 years of copyright protection. Termination of a grant of rights made after 1977 can be made during a 5 year period beginning 35 years after the grant. There are many technical requirements, exceptions, and special rules relating to these termination rights and expert help must be obtained. In short, however, it is important that your estate plan and your executor not overlook this opportunity to recapture copyrights.

Note that selling or giving someone a piece of your art does not automatically take with it the copyright to the work. There is a difference between the artwork itself and the intangible rights related to it.

Trademarks protect distinctive terms and designs. The more distinctive the mark, the more protection it receives. For an example, you may own the trademark used by your company. Your estate plan can direct the next owner of the trademark and it is important that the executor file documents to record the transfer of the trademark registration if it is registered with the date or with the federal trademark office.

A patent is a right to exclude others from using or commercially exploiting an invention. Patents protect inventions, that is, any new and useful process, machine, or article of manufacture. A patent can also be obtained for an original and useful ornamental design for an article of manufacture. A patent must be transferred in writing. Any patent owned should be addressed in your estate plan. If you die before obtaining a patent, your executor can file a patent application.

Any author or artist should consider choosing a an executor who is knowledgeable in his or her field to serve as a special executor after his or her death. For example, an author might appoint a family member as executor to take care of the estate in general, but name a literary executor to be responsible for and carry out certain duties with regard to the decedent’s written works.

Intellectual property can be a valuable assets and it must be managed in your estate to maximize
income streams income, address infringements, protections, registrations and maintenance.