INTELLECTUAL PROPERTY AND ESTATES: WHERE CREATIVITY AND PLANNING INTERSECT

By Kelley A. Way, Esq.*

When in the business of managing another’s assets, whether through conservatorship, probate, or trust administration, sooner or later one will encounter unusual assets. Intellectual property (IP) assets ? specifically, copyrights, trademarks, patents, and the right of publicity ? require special knowledge. This article explains these areas of law generally and then discusses how estate planners and fiduciaries should handle these assets when such assets are part of a client’s estate. While a practitioner may not always have clients with intellectual property, it is common enough in California that everyone should be familiar with the law surrounding these assets to properly manage them.

I. COPYRIGHT

Copyrights are governed exclusively by federal law. Copyright law exists for two reasons: first, to incentivize people to create, as a means to enrich society and culture; and second, to ensure that creators¹ are able to profit from their creations. Copyrightable works are defined as "original works of authorship fixed in a tangible medium of expression."² This definition is broken down into two parts. First, the work must be original, creative, and have a human author.³ The bar for creativity is rather low, though there are cases where a copyright was denied for lack of creativity.⁴ Second, the work must be "fixed," i.e., recorded in some format that allows it to be perceived by others. This second requirement is very broadly interpreted; even having the work stored in a computer’s short-term memory is considered sufficient for fixation.⁵ Under the 1976 Copyright Act,⁶ a copyright is granted as soon as these conditions are met, though it is still advisable to register the copyright with the Copyright Office, for reasons discussed below.