New York Estate Planning & Elder Law Blog
Intellectual property is an umbrella term that includes several different specific areas of the law. Trademark law, patent law, copyright laws and trade secret laws are all examples of intellectual property laws. The constitution guarantees that the federal government has exclusive jurisdiction over patent and copyright laws. Patent and copyright laws are designed to “promote the progress of science and useful arts.”
COPYRIGHTS, OWNERSHIP, HEIRS AND ESTATE PLANNING
Copyrights created after 1978 are generally good for the life of the author plus 70 years. When written for a corporation, so called work for hire copyrights, the copyright is valid for 95 after first publication date to 120 years after the work is created. To pass a copyright on to heirs, you must be careful to do it the right way. If a painter passes a painting on to an heir the right to control the copyright of that painting does not necessarily follow. The painter will have only passed on the original painting. To pass a copyright, the trust, will or other document must specifically mention that the copyright to the painting passes to the heir. It is entirely possible for a painter to pass the original work to a friend or partner but pass the copyright on to another person.
There are some very serious pitfalls involved in passing on a copyright to a party not an heir. 17 U.S.C. § 203 allows for the termination of a copyright grant in some limited circumstances. For example, a one hit wonder sells royalties to their song. The one hit wonder then passes away. The law allows for that transfer to terminate a number of years later, either 35 or 40 years after the transfer, depending on the circumstances, by serving notice of termination on the owner of the copyright as well as the Register of Copyrights. The heirs of the one hit wonder could then recapture some of the income from the hit song, calculated from 70 years after the death of the author.
Copyrights also allow for the holder to control the means by which a work is published. If all publishing contracts expire, the holder can decide to not execute any further publishing contracts. That means that under this legal structure Ernest Hemingway’s work will not be a part of the public domain until 2031. Life without Old Man and the Sea is hardly imaginable.
PATENTS TO HEIRS AND ESTATE PLANNING
Design patents are valid for 14 years from the issue date, while utility patents are valid for 20 years from the filing date. In many circumstances a small business owns a patent rather than a particular person. If that is the case, the stock certificates or ownership of the company is what is needed to transfer to control the patent as well as the right to receive the income generated from the patent.
Ownership of a patent or copyright can be lucrative and is the reward of the market place for your unique genius. You owe it to your heirs to insure that you pass it on to them in a fashion that is in line with your intentions. This delicate task should only be handled by an experienced and prudent trusts and estates attorney.